New IR Laws as clear a used developer!

Paul Dawson from Hydro Photographics in Port Macquarie, has done an outstanding job in deciphering the Fairwork legslation.He has spent many hours in phone calls and meetings trying to gain clarity on what you need to do as an employer.You may look at the attached document and say "it's too hard". That would be a big mistake on your behalf.

 1) Take the time to read his email.

2) Follow the links to gain a better understanding.

 This email and Paul's suggestions are for GUIDANCE only.You will need to make your own decisions.

Paul has kindly agreed to take your calls if you have specific questions on this issue.

 Again Paul,on behalf of all members THANK YOU for the work you have put into this. (Paul becomes National Chairperson for the Professional School Photographers Association... PSPA, at the  Melbourne show).

The new Industrial Relation Laws are not quite as simple as they seem.

I will try to quickly summarise the hours I have spent on this..........which might be difficult because the key words are "depends" "but" & "interpretation".

I started with a simple question....

What is the Modern Award that applies to the Photographic Industry?

After many different answers from FWA & the Ombudsman (and other people within the industry),
I started to ask some trickier questions, and I requested the answers be in writing so I could then advise our industry.
This is when I hit a brick wall............The standard answer when my questions got "too hard" was................."you need to seek independent legal advice"

I felt this to be ridiculous as Ms Gillard assured everyone that she had revolutionised the Industrial Relations Awards and made it simple
I then lodged a complaint with our local Member of Parliament who forwarded my complaint to Ms Gillard's office.
I was then appointed my own Researcher !!! WOW, I was impressed, so I told him everything I knew about our industry,
he then researched and came back to me with the answers.....well sort of.......well that depends on your interpretation.

The results......

Everyone must provide a 'Fair Work Information Statement' to all new employees......

A 2 page summary can be found here......  
http://www.fairwork.gov.au/Pay-leave-and-conditions/Conditions-of-employment/Documents/Fair-Work-Information-Statement.pdf

and it is also a good idea to print the 50 page version found here.....   
http://www.workplace.gov.au/NR/rdonlyres/1955FD28-3178-44CD-9654-56A3D5391989/0/NationalDiscussionPaper_web.pdf

You then need to see if the new Modern Award System applies to you.
Now it "depends" on which State you are in and whether you're a sole trader or company and if you're in WA.......well that's a whole new subject.
and I wont even cover if your a company, trading as a business, or a company, as trustee for a trust, trading as a business.........
And if you're in Victoria well you've already changed from the State System a while back so you cant use a State Award anyway "BUT" lets say you aren't any of those above........

There are 2 types of Modern Awards...... Industry Awards & Occupation Awards.....both have a "majority coverage clause" that applies,
If firstly we stick to a Modern Award - Industry Award, the closest 'lets presume' to most of us is the "General Retail Award" found here...... http://www.fwa.gov.au/documents/modern_awards/word/MA000004.doc
some would be the "manufacturing award" found here....... http://www.fwa.gov.au/documents/modern_awards/word/MA000010.doc    but
( NOTE: The above 2 'industry' awards should cover most of our members , please contact Peter or myself if you think that you are different.)
p.s. I didnt even go into occupation awards --- whole another subject
if you look at the fine print of the General Retail Award Page 5 - line 10........."but does not include:.... retail activities conducted from a manufacturing or processing establishment."
This is where "interpretation" comes in, ......hey , first thought, thats most of us, as we are all manufacturing "but" in the "Majority Coverage Clause"
we are retail because the primary nature of an employers business has to be Manufacturing for this to apply and we are mostly ......
"the sale or hire of goods or services to final consumers for personal or household consumption"
(If you apply the above statement to your business you can then go further or stop with the Retail Award)
If you stop here, please check out the uniform allowance as you might find yourself needing to pay this if you are audited and don't use the right words why you are not paying it.
For School Photographers the fuel allowance is not real clear neither but here is a link to a tax ruling i found that can be used to Photographers who travel from home to a varying job location
The key word to look for is "itinerant"    http://law.ato.gov.au/atolaw/view.htm?docid=TXR/TR9534/NAT/ATO/00001
The GRA seems to cover School Photographers & also Retail Shops but not say Wholesale Printers or Framing Shops. (hope thats clear)
But unfortunately doesn't cover photographers, there is an award that mentions photographers but that is in another industry, hence the need for a Photographic Modern Award that covers all our job descriptions.

One of our members has been told by the ombudsman that he can use his old State Award (NAPSA) because he does manufacturing, this is incorrect information from the ombudsman.
I was also told I could also use a combination of the NAPSA from the Ombudsman, again wrong information because
I have been using the State Award incorrectly because of our business status.
This is the frustrating part, misinformation and interpretation.

Another response from the Ombudsman was, "because there was no award for Photographic Establishments and most of us wont fit in to any Occupation Awards, our industry became "NON-Award" or "Award free" "
Once you get here you have to apply a "boot" (better off overall test) to an award.......here we strike another issue because FWA or the ombudsman wont tell us what award to base the boot test to,
"thats up to each businesses interpretation of which award you belong to"  HAH !!

Where do we go from here ?......I have today met with 'NSW Business Chamber' and they are looking at varying / establishing a Modern Award for our industry.
I will update you on the progress the moment I hear back.

  Please note there are suitable "other solutions"................

You might also find that you will have to use multiple awards for your business and also a combination of your old State Award (if applicable) until we can get a Modern Award that applies to our industry.

The "General Retail Award" found here...... http://www.fwa.gov.au/documents/modern_awards/word/MA000004.doc
will apply to most of us but its not as simple as "hey, lets use this award"

In the mean time for some members it might be wise to use a template "Award Flexibility Agreement" located here    http://www.fairworkaustralia.ahri.com.au/docs/fwrc_template_A_Award_flexibility_agreement.pdf
Instructions on what to do can be found here   http://www.fwo.gov.au/Best-Practice-Guides/Documents/03-Use-of-individual-flexibility-arrangements.doc
If lets say you comply to use the GRAward , this is a good way to change the hours worked from say 38 to 40/week.... but you will have to apply the boot test to the GRAward!!

You can also apply for an Enterprise Agreement , more information here    http://www.fairwork.gov.au/Pay-leave-and-conditions/Agreements/Pages/employers.aspx

Please also realise that dismissal laws have changed best to check this out.....     http://www.fwa.gov.au/index.cfm?pagename=dismissalscoverage
and here is a checklist if you want to get rid of someone,  oops,  I mean , If you want to give them a better opportunity to find their dream job.... HAH!
http://www.fairwork.gov.au/Termination-of-employment/Documents/Small-Business-Fair-Dismissal-Code.pdf

If you are unsure please contact me and I can point you in the right direction after I ask you a few simple questions.
I also have a fax # for FWA and the right questions to ask and you can get an individual "ruling" / response from the FWA

Clear as my developer tanks eh !!