The devil is in the detail

One of the most contentious and confusing issues that businesses face with the recent change in federal government is industrial relations - what do you as an employer need to do?

While the Labor Government has released its industrial relations policy, giving businesses a good indication of what to expect during 2008, the real test will be the detail that is contained in the transition and subsequent Bills to be tabled in Parliament in 2008.

Federal Minister for Employment and Workplace Relations Julia Gillard has announced that the first wave of the changes, the transition Bill, will be put to Parliament in the first sitting week this year, beginning 12 February 2008. However, the Bill may not pass through both Houses as quickly as Labor intends because Coalition Senators control the Senate until July 2008 and may use this opportunity to block the Bill.

In July 2008, the make up of the Senate will change with the Greens Senators, independent Senator Nick Xenophon and Family First Senator Steve Fielding holding the balance of power. After this time it is more likely that the proposed changes will pass through both Houses of Parliament and become law.

The Government has indicated that the transition Bill will:

• phase out Australian Workplace Agreements (AWAs); 
• provide for individual transitional employment agreements (ITEAs) that will continue until 31 December 2009. ITEAs will be subject to a no disadvantage test and only allowed to be made by an employer who had employees engaged on AWAs as at 1 December 2007;
• remove the requirement on employers to provide new employees with a Workplace Relations Fact Sheet, and; 
• provide the Australian Industrial Relations Commission (AIRC) with the resources and direction to undertake the award modernisation process.

It was originally intended that the transition Bill would also contain the content for ten National Employment Standards (NES) to replace the Australian Fair Pay and Conditions Standard; however, they will now be released in a separate piece of legislation.

The Government has indicated that an exposure draft of the NES Bill will be released for comment by stakeholders, such as business groups and unions, by April 2008. It is proposed that the content will be finalised by June 2008. The Government intends the NES to be legislated sooner than the substantive bill so that the AIRC can take them into account in the award modernisation process in 2008.

It is important to note that while the NES will be legislated in 2008, they will not be operational until 1 January 2010.

The last piece of industrial relations legislation intended to be tabled in Parliament in 2008 is the substantive Bill. This will contain the remainder of the Government's policy including changes to unfair dismissal laws and the provision to set up the new regulator, Fair Work Australia, which will replace the AIRC, the Workplace Authority, the Workplace Ombudsman, the Australian Fair Pay Commission and the Office of the Australian Building and Construction Commission.

The new industrial relations system proposed by the Labor Government will not be finalised until 1 January 2010, when the last of the changes will come into effect - the advent of Fair Work Australia, a modernised award system and the ten National Employment Standards.

Beyond the Labor policy releases, it is unknown what else may be contained within the legislation and there is currently insufficient detail in the policy to determine the impact on business in such areas as union right of entry, requirements for collective bargaining and the availability of industrial action.
CCI supports the Government's approach not to rush the substantive legislation through Parliament as this should reduce the risk of poor drafting and unintended consequences, which was inherent in the previous government's WorkChoices reforms. CCI also welcomes the opportunity for consultation with stakeholders over the Bills and strongly encourages the Government to continue to involve the business community.

Ultimately though, for businesses and employees alike the devil will be in the detail.

BY MARCIA KUHNE
Manager, Workplace Relations Policy

www.cciwa.hradvance.com.au

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The Labor Party's Policy Implementation Plan released on 28 August 2007 provides some further detail on its policy Forward with Fairness issued on 28 April.  Areas of detail are still missing, however, and likely to remain unknown until legislation is drafted should the ALP be elected to government after the federal election.

A summary of the current policy position combining details from both Forward with Fairness and the Policy Implementation Plan is set out below.

A national system

1. Labor will support a national system for the private sector; it has given State governments 2 opt outs - government employees would not be included and a State could "harmonise" at its discretion rather than actually referring power to the Commonwealth.  It appears local councils will also not be included.

CCI Comment

2. Both government and Labor should commit to a full national system.  It is wrong and wasteful to allow the States to use taxpayer money's to fund all the infrastructure of a State IR system just for government and local council employees.

3. The private sector wants an efficient public sector.  Industrial relations laws can drive efficiency and they should also be the same basic system for both.  The private sector also competes with the government sector in some commercial matters.  Different industrial relations frameworks can alter cost structures.

National employment standards - increased safety net

1. A combination of legislated minima and award minima will constitute a new safety net under Labor.

2. 10 legislative standards

• Hours of work of 38 per week; comment: appears to be consistent with existing Standard;
• Parental leave of 12 months with right to request 24 months; comment: employers have the right to refuse a request on reasonable business grounds;
• A right for parents to request flexible work arrangements until their child reaches school age; comment: employers have the right to refuse a request on reasonable business grounds;
• Annual leave of 4 weeks; comment: appears to be consistent with the existing Standard;
• Personal and carers leave of 10 days plus 4 days combined paid and unpaid leave; comment: appears to be consistent with the existing Standard;
• Community service leave such as jury and emergency services leave; comment: catered for at State level (different entitlements) and no need for additional or possibly increased legislative standards;
• Public holidays as per state laws; comment: appears to be consistent with existing Standard though it would be inappropriate if Labor includes provisions preventing employees being required to work on a PH;
• Information statement on employment to every new employee; comment: emphasis appears to be on encouraging union membership and as such it is inappropriate;
• Termination notice up to 5 weeks and redundancy pay up to 16 weeks; comment: Notice appears to be consistent with existing minimum, proposed redundancy provisions will, however,  have the effect of significantly extending entitlements;
• Nationally consistent long service leave; comment: currently significant inconsistency between states and so consistency may be costly if it results in levelling up.

3. Further 10 minimum award standards:

• Minimum wages: this will include skill based classifications and career structures, incentive based payments and bonuses, wage rates and other arrangements for apprentices and trainees;
• The type of work performed including whether permanent, casual, and flexible working arrangements;
• Arrangements for when work is performed including hours of work, rostering, rest breaks, and meal breaks;
• Overtime;
• Penalty rates;
• Provisions for annualised wage or salary arrangements as an alternative to payment of penalties;
• Allowances;
• Leave, leave loadings;
• Superannuation; and
• Consultation, representation and dispute settling procedures.

CCI comment 

4. The legislative standards will apply to all employees and are unchangeable.  They can be increased by orders of Fair Work Australia (FWA) in specific industries or occupations.

5. The combination of legislative standards and awards as proposed by Labor would return the system to the traditional features of centralized and industry wide regulation and arbitration that existed in the last century. 

6. The new bargaining obligations would be on top of that system and not in substitution for it.

AWAs

1. Labor will abolish the AWA system. It has confirmed there will be no statutory individual contracts. Common law contracts will apply for employees earning over $100,000 per year.

2. From 1 January 2010 awards will not apply to employees earning more than $100,000 p.a. for employees who agree their terms and conditions under a common law contract.

3. The $100,000 threshold will be the employee's guaranteed ordinary earnings. It will be indexed against annual growth in ordinary time earnings for full time adult employees. There are protections against artificial devices being used to inflate wages above this $100,000 threshold. For example "manifestly unreasonable rostered overtime hours" will not be considered where they take an employee’s remuneration over this threshold.

AWA Phasing out

4. AWAs will continue for their term.  The last possible expiry date for all AWA's is 31 December 2012.

Individual Transitional Employment Agreements (ITEAs)

5. ITEAs may be made between an employer who has any employee engaged on an AWA as at 1 December 2007 and a new employee or an existing employee whose terms and conditions are governed by an AWA. 

6. Any ITEA will expire no later than 31 December 2009.

7. An ITEA will be subject to a no-disadvantage test against the relevant award or collective agreement and AFPC Standard.

CCI comment

8. Common law contracts are not an effective or workable reform measure.  

• 95.1% of employees earn less than $100,000 per year. For every one of those employees common law contracts will be subject to the regulation of awards and the regulation of collective agreements.   This reinforces award coverage for the 95.1% of employees earning less than $100,000 per year.
• For the 4.9% of employees earning over $100,000 per year, common law agreements will be subject to the regulation of collective agreements and union rights under collective bargaining.
• For the 4.9% of employees earning over $100,000 per year, common law agreements will also be subject to Labor’s legislated employment standards - which Labor is increasing, thereby reducing flexibility. 
• Rarely, if ever, did the award system apply to employees earning over $100,000 per year. 
• Every employer of employees on common law agreements is exposed to strikes in support of collective bargaining demands every day a collective agreements exists (whereas under AWAs strike action was banned during the life of the AWA). In effect, the Labor announcement increases the days available for unions or employees to exercise a right to strike against a business. 
• There will be two classes of employees under different rules, and different rules if an employee gets a wage increase from $99,000 to $101,000 (for example), creating anomalies and confusion.  

Awards

1. Awards will not apply to employees earning over $100,000 per annum. They will be further simplified so they deal with only the ten matters described above and additional clauses that concern the application of the legislative conditions in particular industries. A process similar to the 1996 "award simplification" process appears to be suggested.

2. Labor will require "flexibility clauses" to be inserted into awards and collective agreements allowing individual agreements.  Individual agreements will be subject to a no-disadvantage test against the relevant award or collective agreement.

3. The modernisation and simplification process will commence from the time an incoming Labor government takes office (or 1 January 2008). Labor's aim is for the process to be mostly completed by the time the new system takes effect in January 2010.

4. The AIRC will be required to identify a priority list of key awards to be simplified within 12 months with all awards mainly completed within 2 years.

5. Priority will be given to industries and occupations with a high incidence of AWAs and NAPSAs.

6. Enterprise awards will continue in their current form and will only be reviewed where requested by the current parties to those awards.

7.  New simplified awards and national employment standards will commence operation from 1 January 2010.

CCI comment

8. There is potential for concern over the content of awards as many of the 10 award matters contain multiple concepts and therefore awards may continue as comprehensive, restrictive documents.

9. Flexibility clauses are not new and not an effective reform measure.

10.   Flexibility clauses were allowed in awards between 1993-2006. They were a failure because:

• unions generally intervene in award regulation to prevent amendments; 
• unions are part of the collective bargaining system; 
• industrial tribunals establish awards for collective purposes; 
• employers are deterred by the cost and expense of using formal award processes to seek permission to introduce flexibilities; 
• an example is that from a dozen individual flexibilities in awards sought by ACCI in the national work and family test case in 2005, they were all opposed by unions and all State Labor governments and not granted.

Collective Bargaining

1. Labor's policy would introduce a compulsory obligation on employers to collectively bargain, whether the employer wanted to bargain or not.
   
   
2. If the majority of employees in a workplace want to bargain collectively, the employer would have a statutory obligation to bargain collectively in good faith.
   
   
3. If the employer refused to bargain collectively the employees or their union would be able to apply to FWA for an order requiring the employer to bargain collectively.  Upon receipt of an application for a collective bargaining order, FWA would be obliged to determine whether collective bargaining is preferred by a majority of employees in the workplace.  It would have discretion regarding the method it uses to determine the level of support for collective bargaining, such as secret ballot.
   
   
4. Collective agreements would need to comply with the 10 legislated minimum conditions but would not need to comply with every condition in the relevant award as long as the employees are "better off overall".
   
   
5. Protected action would be available if approved by employees in a secret ballot supervised by FWA.
   
6. At the commencement of bargaining, employers would have an obligation to inform employees that they are entitled to be represented by a union.
   
   
7. Unions would be able to make demands on "whatever matters suit them".  They would therefore not be restricted to demands about wages and employment conditions.  The "prohibited content" provisions in the Workplace Relations Act 1996 would be repealed.   The High Court’s Electrolux decision that held that agreements could only contain, and strikes can only be taken over, matters pertaining to the employment relationship would be overturned.
   
8. Good faith bargaining would not require the employer to make concessions but if industrial action is causing significant harm to one of the parties (even if the party is inflicting the harm or damage), FWA would have the power to end the strike and arbitrate an outcome.
   
   
9. Compulsory bargaining such as is proposed by Labor has been examined by the Australian Industrial Relations Commission and rejected.  In the 1994 Asahi case a five member Full Bench expressed a strong view that it would not be sound policy for legislation to force parties to bargain.  The Full Bench expressed support for, and set out arguments why a voluntary bargaining system is appropriate. 
   
10. The AIRC expressed the view that "compulsion" and "bargaining" are incompatible holding that bargaining is voluntary and "an agreement cannot be reached with a person who does not want to agree and negotiations for an agreement cannot take place with a person who does not want to negotiate".

CCI comment

11. Put simply, not all businesses want to bargain to pay more, and not all businesses should be forced to do so.
    
12. Nor should 'good faith bargaining' require an employer to bargain with a union where the employees of the business are not union members and do not seek the involvement of the union.
    
13. Nor should good faith bargaining require employers to disclose against their will commercial information or material that is private to the business, or to disclose to uninvited unions staff employment contracts, or to give union officials with no union members right of entry to the business, or to force the employer to engage in time consuming meetings or red tape when the employer does intend to make or register agreements in the system.
    
14. Good faith bargaining should not (except in very limited circumstances) give an industrial tribunal a power to arbitrate the terms of the 'agreement' if the employer refuses the over award demands of unions or employees.
    
15. In summary, once 'good faith bargaining' forces employers to bargain, and once it forces over award arbitration on employers then it is not the benign concept it appears.  It becomes compulsory bargaining, and compulsory arbitration under the label of 'good faith bargaining'.  It affects rights and outcomes.  Compulsory union bargaining and compulsory union arbitration of above award wages and employment conditions does not concern 'good faith'.
    
16. It appears that a non-union agreement will not be an option for employers so long as they have one union member in their workforce.

Strikes

1. Labor's policy would allow strikes over matters that don't pertain to the employment relationship.  This is not current law.  It opens the prospect of strikes being taken over union matters and not purely wages and conditions of employment.
   
   
2. Areas where unions have in the past made bargaining demands over union matters that could potentially be included under Labor policy in the right to strike include:
• Preference in employment, promotion or redundancy to unionists;
• Paid trade union training leave;
• Restrictions on non union contractors;
• Restrictions on non union business restructuring (labour hire firms and outsourcing restricted without union approval);
• Compulsory union superannuation;
• Compulsory union insurance (employer pays income protection insurance of all employees from a union sponsored policy);
• Compulsory union payroll deductions;
• Union approval of site entry;
• Expanded union entry into businesses.

Right of entry

1. Labor says it will retain restrictions on union right of entry.

CCI comment

2. Current laws require at least 24 hours notice before entry.  It is not clear whether Labor will retain this as the policy announcement refers only to unions giving "proper notice".
   
3. Abolishing AWAs also abolishes current restrictions on union right of entry during the term of AWAs. Common law contracts may allow union entry for a wider range of purposes than was permitted under AWAs. 
   
4. Unions have used OHS laws made by State governments to get around right of entry restrictions.  This is a loophole not addressed by the Labor announcement.

Unfair dismissals

1. Labor policy removes the current small business exemption (less than 100 employees) from unfair dismissal laws.  
   
   
2. The only exemption concerns businesses employing fewer than fifteen employees. These businesses can still be the subject of an unfair dismissal claim but only in respect of an employee who has at least twelve months' service.
   
3. Labor also removes the following exemptions:
• Casual employed for a short period (ie less than 12 months)
• Fixed term employees;
• Fixed task employees;
• Probationary employees;
• Trainees/apprentices;
• Seasonal employees;
• Employees serving a qualified period of up to 6 months;
• Employees dismissed for genuine operational reasons.
  
  
4. Labor's system will have provision for Fair Work Australia to provide advice and assistance for small business and will facilitate the preparation of a fair dismissal code, the purpose of which is to provide small business owners with clear information in relation to dismissal.
   
5. Labor policy will require that claims be made within 7 days of dismissal (an improvement on current law of 14 days although extensions to time can be granted in appropriate cases).

Unfair dismissal procedure

6. Claims will be lodged with Fair Work Australia which will have multiple offices in shopping centres and Centrelink offices.
   
   
7. There will be a compulsory conference convened by FWA.  Employers and employees can be represented with a "representative or support person" but must attend in person and must directly answer questions.
   
   
8. FWA will rule on an issue in this informal way.  Orders can be made requiring re-employment or compensation.  There will be no written submissions, no hearing and no examination.  Neither the employee nor the employer will be put on oath to tell the truth.  There will be no lawyers involved.
   
9. Fair Work Australia will be able to rule on unlawful (discrimination based) dismissal claims.
   
   
10. Labor will develop a Fair Dismissal Code which it says will give certainty because it will tell small business when it can dismiss staff.   Where the Code is genuinely complied with, the policy says that the dismissal will be judged to be fair. 

CCI comment

11. A 12 month qualifying period as proposed by Labor is not the same as an exemption - staff or business problems can occur after 12 months. 
    
12. Governments writing the rules about when a business can dismiss staff has not been legislated before; while well intentioned, this change could backfire with governments regulating management decisions before dismissals; previously governments only regulated unfair dismissals, now government would be making rules covering all dismissals. 
    
13. Informality is a double edged sword and may deny natural justice.  Employers must attend, must answer questions, cannot be legally represented, cannot require the employee to sit in a court room and on oath tell the truth, cannot subject the process to public scrutiny and must accept a desk-top ruling by FWA that determines the matter and interferes with the employers legal rights and business management.
    
14. The Fair Dismissal Code is also a double edged sword.  If compliance with the Code means a dismissal is fair, then it would be likely that substantive non compliance would, in practice, mean a dismissal is prima facie unfair.  Labor does say that errors of a procedural or technical nature will not automatically presume a dismissal to be unfair.  The terms of the Code will therefore be significant in deciding if an employer can dismiss fairly.
    
15. The proposed accessibility of FWA may encourage more claims especially if it is placed in the same venue a dismissed employee applies for unemployment benefits (Centrelink).
    
    
16. The Code will, whatever the intention, be a regulatory document about employer conduct prior to dismissal.  This has not been the practice of the past where, for all the problems with unfair dismissal laws, the courts tried to objectively rule on fairness rather than substitute their decision or the decision of management.  The Code regulates the decision of management and could be seen as more intrusive than the former system.  This depends on how it is applied.

Australian Industrial Relations Commission

1. The AIRC will have responsibility for simplifying awards during the 2 year period from 1 January 2008 to 1 January 2010.
   
2. The AIRC will be abolished on 1 January 2010 and Fair Work Australia will commence operation.

CCI comment

3. It is important that the powers and role of the AIRC is the following areas continue:
• Revoking union official entry permits in cases of inappropriate behaviour;
• Suspending or terminating bargaining periods where industrial action is threatening to damage the economy or the welfare of the population and to prevent pattern bargaining;
• Suspending industrial action;
• Overseeing secret ballots to authorize industrial action;
• Overseeing registration of unions and employer associations; and
• Issuing orders to prevent and stop unlawful industrial action.
  
4. There is some doubt about the Constitutional legitimacy of Labor's proposed FWA.  The High Court in the 1956 Boilermakers Case found it was unconstitutional to have the same body creating rights as well as enforcing those rights.  As a consequence the AIRC has had the role of creating rights through awards and also dispute settlement and prevention while the role of enforcement of rights has been the role of the Federal Court.

New national body - Fair Work Australia

1. FWA is said to assume the functions of the AIRC, and expand those functions to include dispute conciliation and forms of safety net arbitration, unfair dismissal arbitration, good faith bargaining oversight, secret ballot oversight, regulating registered industrial organizations and in limited cases last-resort arbitration of collective agreements.
   
2. FWA will review minimum wages once each year with updated wages taking effect from the first pay period on or after 1 July each year.
   
3. FWA will also assume functions associated with collective agreement making (because of the proposed abolition of the Workplace Ombudsman) and minimum wage setting (because of the proposed abolition of the Australian Fair Pay Commission).  It will also undertake advisory and compliance functions (because of the proposed abolition of the Workplace Authority).
   
4. A separate independent division has been said to be established to exercise court-based judicial power.
   
5. FWA will have offices in suburbs and regional centres such as shopping centres and Centrelink offices.

CCI comment

6. FWA would be a powerful new national regulator.
   
7. Creating a powerful national regulator increases the prospect of greater regulation of wage and employment matters on both an industry basis and an enterprise basis.  Outcomes as well as process will be regulated and arbitrated.
   
8. In terms of conciliation FWA could:
• Conciliate disputes over agreement-making demands at the joint request of parties; and
• Conciliate unfair dismissal claims.
  
9. In terms of arbitration FWA could:
• Order if collective bargaining should occur (ie decide if a majority of employees seek collective bargaining);
• Make orders to enforce good faith collective bargaining obligations;
• Arbitrate agreements where industrial action is causing significant harm to the wider economy or community welfare;
• Arbitrate unfair dismissal claims;
• Arbitrate unlawful dismissal claims;
• Arbitrate(annually) minimum wages;
• Arbitrate (making, reviewing and simplifying) the award safety net;
• Conduct inquiries and recommendations (to government/parliament) on changes to the legislative safety net;
• Make orders to ensure freedom of association is protected; and
• Make administrative decisions whether to approve agreements.
  
10. In terms of advice, FWA could:
• Provide employees and employers advice, assistance and settle grievances';
• Advise whether agreements comply with Labor's "genuinely better off" test;
• Provide advice and guidance on "simple flexible agreements"; and
• Produce guidelines on family friendly workplace arrangements.
  
11. In terms of compliance, FWA could:
• Undertake general inspectorate functions (investigation, education, prosecution etc); and
• Establish specialist inspectorate divisions for the building and the hospitality industries.

Building industry regulation

1. Labor says building watchdog (ABCC) will be abolished in 2010 with current powers and resources until then.

CCI comment 

2. ABCC abolition retrograde and will damage industry and economy and should be retained  

3. Labor has only committed to retaining powers and resources "for this period" (ie until 2010) - no commitment by Labor to its new regulator having same powers or resources, only a commitment to "consult" on those matters and retention of the "principles of the current framework", meaning important detail (such as powers of the proposed regulator) are currently unknown.

Common law is well settled as to how employers can protect their business interests by restraining former employees from discussing trade secrets or capitalising on relationships with the ex-employer's customers.

Trade secrets 

Courts have consistently stated that employers are entitled to have their interests protected and may do so by restraining employees divulging secrets or putting such secrets to their own use.

Apart from these exceptions, employers are unable to protect against competition and must be prepared to encounter competition at the hands of former employees.

A restraint that attempts to restrict competition or a restraint against the use of a person's skill or knowledge acquired in the employer's business will not be upheld as a valid restraint.

Poaching of employees by ex-employees In April 2005, the New South Wales Supreme Court (Aussie Home Loans v X Inc Services [2005] NSWSC 285) had to determine whether a restraint purporting to stop ex-employees from enticing existing employees to leave the employer was valid under common law principals.

The Court referred to previous decisions which held that an employer had a legitimate interest in maintaining a stable, trained workforce, which could be protected against solicitation and enticement by a former employee but such restraint had to be reasonable.

In the case in question, the restriction stated that employees could not for a period of 12 months after the termination of their employment, for any reason, solicit, interfere with or endeavour to entice away any employee or contractor of the employer.

Employees have the right to work for a rival business which may offer more attractive terms of engagement upon duly terminating their arrangements with the employer.

In this case, the NSW Supreme Court held that the 12 month restriction was unreasonably long, particularly having regard to the fact employees were only required to provide one month's notice to terminate their employment contract.

As the restraint clause could not be read down, it was held to be unenforceable at common law.

CCI Legal can assist employers in drafting an appropriate restraint clause.

In the matter of Miller-Smith v Richardson Pacific Ltd, at first instance, the WA Industrial Relations Commission was faced with a claim of contractual benefits in the form of unpaid redundancy monies at the rate of 3.5 weeks for each year of service.

The material facts of the matter before the Commission were:

• the applicant had worked in various capacities with the employer since 1988
• the applicant, at the date of her dismissal, was employed as the West Australian State Manager, whose contract of employment was mainly verbal but which contained the implied terms of the Minimum Conditions of Employment Act
• the employer was bound by a number of Federal certified agreements that applied to its production workforce. These agreements provided an entitlement of 3.5 weeks pay for each year of service in the event of a dismissal for reason of redundancy
• the employee was not covered by the certified agreements
• a practice had developed throughout the 1990s that when the employer made nonproduction staff redundant, employees were paid the same redundancy benefits as then applied to production employees bound by the certified agreements.
• there was evidence of this practice from a variety of documentary sources and by evidence of witnesses.
• the employee gave evidence that the managing director had confirmed the practice and told her that if she were made redundant, she would receive the same benefits.
• the ownership of the employer changed when another company bought its shares.
• during the “due diligence” phase, the Employer told the buyer that it did not have any policies or contractual obligations that affected the employee if she were made redundant.
• acting on this information, the buyer applied its own redundancy policy (2 weeks pay per year of service) when it made the employee’s position redundant.

The Commissioner found that the entitlement to 3.5 weeks redundancy pay arose out of the custom and practice of the employer since 1991.

He made a finding that there was no express term as to redundancy since the evidence given on that point was largely hearsay and inadmissible.

The employer appealed the decision on a number of grounds including that the Commission was in error in implying the term as a matter of custom and practice.

On appeal, a Full Bench of the Commission agreed that the Commissioner had erred in finding a term of contract based on custom and practice but allowed the employee to argue that the evidence demonstrated that there was an express term of the contract that ensured her entitlement to the redundancy payment of 3.5 weeks per year of service.

The express term arose out of the reported admissions by the general manager.

The Full Bench held that … “an informal admission by words or conduct made by a party or those in privity with a party is admissible evidence against the party of the truth of its context.”

The Full Bench affirmed the decision of the Commission at first instance, but for different reasons, and dismissed the appeal.

The moral of this case is this: management employees should be extremely wary of making informal comment as to contractual benefits to their employees.

Confirmation of such contractual rights should be left to more formal processes.

A new minimum salary threshold for positions being offered to temporary business entrants has recently come into effect.

From 11 February 2004, Australian employers seeking to sponsor temporary overseas employees for nominated positions in Australia will be required to pay a minimum base annual salary of $37,720 per employee.

This excludes additional payments such as superannuation, accommodation, bonuses or any other non- salary benefits.

The new minimum salary threshold is an upward revision of the base salary level of $35,828 which has been in effect since November 2002 and reflects the average annual earnings for all employees in Australia, as at February 2003.

In addition, a new separate minimum annual salary of $46,620 will apply to information and communication technology positions to better reflect the typical salary for experienced professionals in that industry.

The gazetted revision has been made despite CCI’s expressed concerns that the minimum salary threshold arrangements for temporary business entrants is set inappropriately in relation to some state and relevant federal awards which apply in WA.

The arising disparity between the gazetted salary threshold and some awards previously highlighted to the Federal Government is preventing some employers from accessing temporary overseas employees. This has created difficulties particularly in areas where there are identified skill shortages. While the gazetted salary level will apply to position nominations lodged on or after 11 February 2004, the new level will not affect employers in regional and low-population growth areas.

Under special provisions introduced in 2002, employers in regional Australia may seek an exemption from the salary requirement under exceptional circumstances.

For more information contact Ivan Hoe at CCI Migration Services on 9365 7614 or e-mail: hoe@cciwa.com

There are a number of avenues for entry to Australia depending on the length of time people intend to remain in the country.

Short-term stay

The business (short stay) visa
This visa may be issued for single or multiple entry. Holders of a multiple entry visa may make any number of journeys to Australia for up to three months on each occasion.

Multiple entry visas may be valid for up to five years, or the life of the passport (to a maximum of 10 years). Applicants must apply for this visa out