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INDUSTRIAL RELATIONS REFORMS

On 1 January 2010, private sector employers and employees previously covered by the NSW state award system (mainly sole traders and partnerships) moved into the national workplace relations system administered by the federal government. 

Transitional arrangements are now in place for businesses previously operating under the state industrial relations system, meaning that:

• persons covered by a federal award on 31 December 2009 must now use the appropriate modern award.
  
• if persons were covered by a NSW state award on 31 December 2009, the award has been preserved as a state reference award for a period of 12 months to 31 December 2010 and modern award must be used as of 1 January 2011.

If you are starting a new business as a sole trader or partnership, you will be covered by the appropriate modern award.

Ten new National Employment Standards (“NES”) also came into effect on 1 January 2010 and all NSW businesses, whether previously covered by a federal award or a NSW state award, must apply these new standards for all their employees.
The 10 National Employment Standards are:

• Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
  
• Requests for flexible working arrangements – allows parents or carers of a child under school age, or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
  
• Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave.
  
• Annual leave – 4 weeks paid leave per year, plus an additional week for certain shift workers.
  
• Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
  
• Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
  
• Long service leave – a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
  
• Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
  
• Notice of termination and redundancy pay – up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
  
• Provision of a Fair Work Information Statement – employers must provide this statement to all new employees.
  

NSW GOVERNMENT BROADENS JURY POOL

Attorney General John Hatzistergos today announced several changes to the Jury Act which are intended to broaden the jury pool and make jury service easier for working people.

The State Government proposes to reduce the number of exemption categories to “ensure jury panels represent the widest possible cross-section of the community”, meaning that previously exempt persons such as lawyers (other than those working in the public criminal justice system) and law enforcement personnel working in clerical and administrative roles would become eligible.

Exemptions will remain for police officers, medical and emergency services workers, and those who are genuinely unable to perform jury service.

Mr Hatzistergos noted that the NSW Government also sought to strengthen protections for employees, and said that the proposed laws will “prevent employers forcing employees to take leave, or to work outside court sitting times, while serving on a jury.”

Indeed corporations who sack or unfairly discriminate against employees could be fined up to $22,000, while individual employers will face fines of up to $5,500.

As it stands most workers in NSW will have to be paid by their employers for the first ten days of jury service. After ten days, the intention of the Government is to increase the daily allowance from $100 to $225 for jurors who are employed.

CHANGES TO LEGISLATION FOR NOT FOR PROFIT
ORGANISATIONS

Companies limited by guarantee, co-operatives and incorporated associations are common structures for not for profit organisations.

Since the enactment of the Co-operatives Amendment Act 1997, co-operatives have been consistently required to review and update their rules. Model rules for co-operatives were also introduced in 2006, an important feature of which is the "safety net" feature.

This means that, if a co-operative's rules do not actually provide for a matter that is dealt with in the model rules relating to that class of co-operative, the relevant provision of the model rules is deemed to be included in the rules.

The changes to the co-operatives legislation which are now under consideration will replace separate co-operatives legislation in each State and Territory with a national model, and simplify administration and changes to rules.

For example, a co-operative will be able to choose whether to adopt some model rules "as in force from time to time" and automatically accept any changes made to those model rules, or choose to adopt model rules as in force at a specified date.

The Registrar of Co-operatives will also be able to specify categories of rules which a co-operative can change without requiring approval.

Further, it is anticipated that the Associations Incorporation Act 2009 will come into effect early 2010.

The current rules of an existing association will be taken to comply with the requirements of the new Act until the association chooses to lodge changes. When an association lodges changes it rules, however, it will need to ensure all other aspects of its constitution comply with the new requirements.

The NSW Office of Fair Trading has identified the significant features of the new Act as follows:

(a)  An association's rules will instead by called its constitution;

(b)  More flexibility for meetings and resolutions;

(c)  More choice for official address of the association;

(d)  Common seal will no longer be required;

(e)  More flexibility for annual general meetings;

(f)  Two-tiered financial reporting;

(g)  Statutory duties of committee members and obligations of office bearers; and

(h)  Australian residency requirements for at least three committee members and the adoption of a penalty notice system.