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EMPLOYMENT RELATIONS UPDATE 
VEHICLE MANUFACTURING, REPAIR, SERVICES & RETAIL AWARD 2010
Employers must ensure that copies of this award and the National Employment Standards are available to ALL employees to whom they apply either on a notice board which is conveniently located at or near the workplace or through electronic means, which ever makes them more accessible.
Hard copies are available by contacting the MTA office on 6241 6266.
CAUTION REQUIRED WHEN TERMINATING EMPLOYEES
Most MTA members are sufficiently well tuned to know that termination of employees presents a danger to the business and therefore that warrants seeking advice. There are certain protections for employers, the most prominent being the qualification period that must be served by an employee having a right to lodge an unfair dismissal claim.
However, even this protection has no impact if an employee alleges that they have been adversely affected when seeking to act on their "workplace rights" or they were discriminated against. In these situations no qualifying period is required to be met. In fact, once a claim has been lodged by an employee, a prospective employee or ex employee, the onus reverts to the employer to justify their actions.
Employers beware! The usage of this law is only just starting to rise to the surface. As a result, employers need to be more diligent than was first thought necessary during the early part of a contract of employment.
A recent decision of the Federal Court of Australia determined a claim that an employee was terminated for reasons including due to the employee's (young) age. The Court in this matter considered all the submissions of both sides and in the end was of the view that it could not "determine with sufficient certainty whether or not Mr Carr's age was a material and operative factor" when the employer decided to terminate Mr Carr.
So in the normal assessment of events this would be called a draw because, in relation to this part of the claim, neither party was able to sufficiently persuade the Judge to accept their argument. As such, the presiding judge would reject the claim and dismiss the matter and the employer would have no case to answer as the employee failed to prove their case.
However, due to the structure of the legislation the judge must rule against the employer because the law places the onus on the employer to establish their defence, and this was not done in this case.
This week one of MTA.NSW employment relations staff has been assisting a NSW member who has been served with an (adverse action) claim. In this case the employee had been employed for less than 2 months. The employer alleges the reason for termination was poor performace. The employee, in his claim, alleges that he was terminated after he asked the employer for the name of the award he was employed under and for his pay slips. It would be expected that the employee will argue that it was because he asked for this information he was terminated.
The Act seeks to protect employees where they may have a workplace right or whether the employee has acted (or not acted, proposes to act or not act) on that workplace right. Any "adverse action" against an employee because of such workplace right will give an employee a right to seek redress. "Adverse action" could include dismissal or to injure an employee in employment such as unilateral changes to contract of employment, altering the position of an employee in employment or discriminating between the employee and others. Adverse action will also include any threatened action.
CONSULTATION BEFORE REDUNDANCIES
Did you know that if you make an employee's position redundant (through lack of work or job design) and you fail to 'consult' the employee beforehand, the employee could successfully claim unfair dismissal at Fair Work Australia? You may also be in breach of the applicable award.
The Vehicle Manufacturing, Repair, Services and Retail Award 2010 and the Clerks - Private Sector Award 2010 have identical provisions which provide that an employer must discuss workplace change and provide information in writing to the employee about the nature of the proposed changes, the expected effects of the changes and any other information that is not contrary to the employer's interest. This can of course only happen prior to the termination of the employment contract.
If an employee has genuinely been made redundant then a dismissal will not be unfair. However, the definition of 'genuine redundancy' in the Fair Work Act 2009 requires that an employer must have complied with any consultation obligations in a modern award or enterprise agreement. Employers must also ensure that the employee could not have been redeployed elsewhere in the workplace or in an associated business.
Remember: it is not enough to demonstrate to Fair Work Australia that your business is suffering severe financial stress or that the person claiming unfair dismissal was just one of many people who were made redundant. You will be found to have dismissed the employee unfairly if you have not consulted with them as required by the relevant award prior to the termination of the employment.
SMALL BUSINESS SUPER CLEARING HOUSE COMMENCES OPERATION
Small businesses (employing fewer than 20 employees*) can now utilise the services of the Small Business Superannuation Clearing House .
The Small Business Superannuation Clearing House enables an employer to make a superannuation payment to one location rather than to a variety of funds. The choice of fund requirements means that a small employer can be making different payments into several different funds depending upon the funds selected by their employees.
An employer can register the details of their employees' superannuation funds and contributions and use the Clearing House for processing.
Medicare Australia operates the service and employers wanting to avail themselves of this service can register at www.medicareaustralia.gov.au/super
*Note the small business reference in this article refers to the definition of a small employer for superannuation purposes only. The definition of 'small business' for unfair dismissal purposed is still a business that employs fewer than 15 employees.
OFFICE OF REGULATORY SERVICES UPDATE 
FAIR TRADING
New Laws Affecting the Motor Vehicle Repair Industry
Currently, the motor vehicle repair industry operates under the Fair Trading (Motor Vehicle Service and Repair Industry) Code of Practice 1999. In October 2010, however, the Code will be replaced by the Fair Trading (Motor Vehicle Repair Industry) Act 2010.
The introduction of the Act provides for a range of penalties to people (including partnerships and corporations) who carry on a business of motor vehicle repair work, for reward, without a licence. If your business is not registered at the time the Act commences in October, you will be unlicensed and offences will apply. It is, therefore, in your best interest to register.
To find out how to register, contact the Office of Regulatory Services (Business and Industry Licensing) on 6207 3000 - before 1 October 2010. Further information is available at www.ors.act.gov.au (Business and Industry Licensing, Industry Licences and Permits, Motor Trades).
If you are a motor vehicle repairer, and you are complying with the Code, then complying with the new Act will be easy. You will not need to do anything differently to what you are currently doing. You may, however, be interested in attending one of a number of information sessions to be conducted by the Office of Regulatory Services as a way of explaining the new Act. Register your interest to attend an information session by sending an e-mail to ors@act.gov.au or by calling 6205 3461.
YELLOW PAGES SCAM 
HAVE YOU RECEIVED A FAX WITH THIS IMAGE? DID YOU SPOT THE ERROR?
Sensis, the company that produces Australian telephone directories, is warning about a scam fax being sent to businesses from a company claiming to be Yellow Pages which offers free submission to www.google.com.au
There is no free submission. If you read the fine print, you will find you are liable for over $3,000 and get nothing in return. The money goes to overseas scammers.
Registration in the directory is for a term of two years at a cost of $129 per month, payable one year in advance with 14 day payment terms. Payment is still required for the agreement term in the event that the customer chooses to remove their details from the directory.
The fine print goes on to say that if you challenge the payment, you have to do so in an English court and pay the company's costs - whether you win or lose.
PS The error is in the logo. The legitimate Yellow Pages logo has the "fingers doing the walking" - with the fingers pointing downwards. The fingers in the fake logo are pointing upwards.
FAMILY & COMMUNITY DAY
Members are advised, Family & Community Day will be observed on Monday 27 September 2010
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