It is plainly obvious that many of the changes introduced by the Fair Work Act 2009 and the related legislation will impose additional direct and indirect costs on employers in the Federal Industrial Relations System.

The ALP industrial relations reform agenda was first announced more than two years ago, at a time when no one ever contemplated the ‘global financial crisis’ and the end of Australia’s economic boom was unimaginable.  Given the current economic climate there are many who question whether Australian employers can now afford the changes that the new legislation will bring. 

The Fair Work Act was passed earlier this year and will, for most practical purposes, commence operating in two phases from 1 July 2009.  Some of the related legislation has already commenced and parts of the Act will commence as soon as 26 May, although none of the transitional legislation has actually passed through the parliament.

The award modernisation process began in March 2008.  Otherwise, the first substantial phase, which includes new unfair dismissal rules, good faith bargaining requirements and the transfer of business provisions, will start on 1 July 2009.  The balance, including the new “safety net” of minimum terms and conditions of employment, comprised of the National Employment Standards and Modern Awards, will start operating on 1 January 2010. 

The purpose of this article is to examine some of the more significant changes that will impose additional burdens on employers. 

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In two recent decisions, Courts have protected the business interests of employers by awarding damages against former employees who misused confidential information and intellectual property during, or after the end of their employment.  In one case, damages were awarded in the amount of $212,000. 

Worsening economic conditions may see an increase in this type of action by employers seeking to protect their business from any threat.  In order to succeed in many of these types of claims, employers must have appropriate and enforceable employment contracts in place to protect, for example, their confidential information and intellectual property.  Depending on the nature of a business, a restraint of trade clause preventing employees from competing with their employer and soliciting their clients after the end of their employment, may also be appropriate. 

Even with employment contracts in place the Courts will carefully consider what, if anything, an employee has done with their employer’s (or former employer’s) confidential information or intellectual property.  If they have done nothing more than, say, email documents to themselves while still working for their employer, then they may be found not to have breached their employment contract.  Ultimately the outcome in any matter will depend on all of the factual circumstances including, in many cases, the precise wording of the applicable employment contract. 

The Australian Taxation Office has released a public ruling confirming that employers do not have to make compulsory superannuation contributions in respect of overtime payments.

The ATO accepts that it was never the intention of the law to require super contributions on overtime amounts.  The controversy has been about the line between overtime earnings and other “non-overtime” earnings (called ordinary times earnings) which do require super contributions.

Whether the new ruling settles this controversy and provides clear guidance for employers is, of course, another question.

Both State and Federal legislation prohibit discrimination against people with disabilities.  One of the most problematic areas of anti-discrimination law, from a compliance perspective, arises for owners, managers and developers of publicly accessible buildings, who are legally required to ensure equitable access for people with disabilities.  Recent developments at the Federal level will assist stakeholders in the property industry to ensure compliance with that obligation.

Disability discrimination law is one of the few areas of discrimination law where positive action is required to ensure compliance.  In this context, failure to make appropriate provision for disabled-access to buildings is unlawful and can result in complaints being made to both State and Federal regulators.  Complaints can lead to orders for payment of compensation and for the performance of building modifications.  Substantial expense can be involved, therefore, building owners, managers and developers cannot afford to disregard their legal obligations.

The discrimination jurisdictions are entirely complaint driven, and the legislation itself provides little guidance on how compliance can be achieved and complaints avoided.  Last December the Federal Government tabled draft Disability (Access to Premises – Buildings) Standards in Parliament.  If and when the Premises Standards become law, they will form the basis for compliance with the Commonwealth Disability Discrimination Act 1992 for new buildings or, where new building work is being undertaken, in existing buildings.  The draft Premises Standards are currently being reviewed by a parliamentary standing committee, which is expected to publish its report within the next couple of months.