Existing agreements (including AWAs, ITEAs and Collective Agreements) will continue to operate past their nominal expiry date as prescribed in the agreement. There has been speculation that old agreements made under the previous legislation may not be recognised under the new Fair Work Act 2009 (Cth). This is not the case and agreements will only cease to operate if they are terminated via mutual consent or if they are replaced by a new registered agreement.

In a significant change, all employees must receive the minimum pay rate as prescribed by the relevant modern award (as discussed below). For example if a registered agreement's wages fall below those specified in an underpinning award, the award rates shall prevail. General terms and conditions of employment however, will prevail over what is prescribed in the underpinning modern award. The new NES will also be part of this framework.



Awards

New modern awards will apply to all Victorian employers. These will take effect most probably on 1 January 2010, (subject to final approval from the AIRC). The Victorian Farmers Federation (VFF) and the National Farmers Federation (NFF) have been actively lobbying to minimise the impact of the Horticulture Industry Award 2010 (HIA 2010), which is due to take effect 1 January 2010.

The NFF Workplace Relations Advocate, Denita Wawn, met with the Senior Advisor to the Minister for Employment and Workplace Relations, Julia Gillard in Canberra recently to outline the horticultural industry's concerns, particularly over the impact of the final version of the Award to the Australian Industrial Relations Commission (AIRC). NFF has also appeared before the AIRC about this issue, and to also seek a 2 year transitional period for the commencement of the Award.

The VFF has also met with the Victorian Minister for Agriculture and Small Business, Joe Helper, to outline industry concerns and seek support for industry to have the opportunity to provide comment on the impending Award to the AIRC.

Members are strongly urged to contact the Victorian Farmers Federation Workplace Relations Department on (03) 9207 5512, to discuss options available through the modernisation process.



Legislation

The Fair Work Act 2009 (Cth) came into effect on 1 July 2009. Key areas of change at this point in time are unfair dismissal and agreement making.

On January 1 2010, the new NES will apply to all Federal System Employees (FSE's). As Victoria is under Federal jurisdiction for Workplace Relations, this means that the NES will form the absolute minimum conditions of employment for employees working in Victoria. Whilst the NES is the cornerstone of the new Fair Work Act 2009 (Cth), it shall come into effect some 6 months (1 January 2010) after the commencement date of the Fair Work Act 2009 (Cth).



Unfair Dismissal

Unfair Dismissal will apply from 1 July 2009 to Employers, from the introduction of the Fair Work Act 2009 (Cth). Employers will face possible unfair dismissal claims from employees who have been terminated on or after July 1.

An employee can make a claim against an employer if;

• They were employed with an employer that had at the time of the termination 15 or more employees, and been employed for 6 months or more;
• They were employed with an employer that has at the time of the termination less than 15 employees and been employed for 12 months or more (Small business*);
• In a significant gain for Victorian Farmers, the Government has introduced a Small Business Fair Dismissal Code;

*For small business for unfair dismissal purposes- defined as a business with fewer than 15- full-time equivalent employees until Jan 2011. Then head count will change.

The Small Business Fair Dismissal Code has been introduced to assist small business .. The small dismissal code checklist is found in section 5 in the VFF Employment Handbook.

The Small Business Fair Dismissal Code promotes performance management and procedural fairness at the workplace level - and if an employer has proof that compliance has been met with the code - an unfair dismissal claim from an employee may be vetoed by Fair Work Australia.

The Code does not diminish an employer's right to summarily dismiss an employee guilty of serious and willful misconduct.

Before any of the above strategies commence, please contact the VFF Workplace Relations Department on (03) 9207 5512, to discuss your statutory obligations.