The Fair Work Act amendments — in detail


The Fair Work Act amendments — in detail

This analysis of the Federal Government's announced changes to the Fair Work Act is from Australian Business Industrial.


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This analysis of the Federal Government’s announced changes to the Fair Work Act 2009 is from Australian Business Industrial.
The amending Bill
On 21 March, the Federal Government tabled the Fair Work Amendment Bill 2013, which now awaits the second reading debate. Neither the House nor the Senate sit again until 14 May (which is the day of the Budget). Also, on 21 March, the Bill was referred to the
  • Senate Education, Employment and Workplace Relations Legislation Committee. Submissions are due by 15 April and the Committee is to report on 14 May.
  • House Standing Committee on Education and Employment. Submissions are due by 18 April, but it is not clear when the Committee is to report to the House.
The Bill has seven Schedules.

Schedule 1 — family friendly measures

1. The ‘family friendly measures’ which were serially announced by the Prime Minister and Minister for Workplace Relations during February:
a. Amending parental leave provisions (Part 2-2, Div 5) to remove the deduction from unpaid parental leave time spent on special maternity leave. In this context special maternity leave is unpaid leave taken for pregnancy related illness prior to commencing maternity leave and arises when the employee has no paid personal/carers leave entitlement. (Special maternity leave was not deducted from unpaid parental leave under the (NSW) Industrial Relations Act.)

b. Amending the parental leave provisions to increase the right to concurrent parental leave for a partner to 8 weeks. Except by agreement, concurrent leave would not start before the child’s birth or placement and could be taken in more than one block but, without agreement, a block cannot be shorter than 2 weeks. There should be 10 weeks notice of the first incidence of concurrent leave and 4 weeks notice of subsequent instances.

c. Amending the right to request provisions (Part 2-2, Div 4) to expand the right to request flexible working arrangements to cover an employee who is:
i. a parent or has caring responsibilities for a child of school age or younger;

ii. a carer as defined in the Carer Recognition Act 2010;
iii. a carer of someone experiencing domestic violence;

iv. aged 55+;

v. has a disability; or

vi. the victim of domestic violence.
Currently, an employee who is a parent of, or has responsibility for a child under school age may request a change, which can only be refused only on reasonable business grounds. The amended s65(1) would provide that an eligible employee who would like to change their arrangements may request and a new s65(1B) would provide that a parent, or employee with responsibility for the child, returning from leave associated with the birth or placement, may request part-time work. The amendments also provide indicative ‘reasonable business grounds’ (new s65(5A)) which include a significant loss of efficiency or productivity or a significant negative impact on customer service.

d. Inserting a new s145A requiring that a modern award consultation term includes a term that requires the employer to
i. consult employees about a change to their regular roster of ordinary hours of work;

ii. provide information about the proposed change;

iii. invite employee comment; and

iv. allows for representation in connection with that consultation.
The FWC would have to amend modern awards by 31 December 2013 to comply with the amendment with effect from 1 January 2014.

Section 205 would also be amended so the consultation term in agreements requires the employer to consult about change which is likely to have a significant impact on the workplace and about a proposed change to the regular roster or ordinary hours of work. This would apply to agreements made from 1 January 2014.

e. Amending the parental leave provisions to extending the right to ‘no safe job leave’ (NSJL) to any pregnant employee. NSJL is currently attracted when a pregnant employee is fit for work but the work that she is doing presents a hazard or there are risks arising out of the pregnancy and no safe alternative which requires the same hours to be worked (unless by agreement) as the current work. NSJL is currently only available to an employee who has applied for maternity leave and is paid. Under the amendment, paid NSJL would remain confined to someone entitled to unpaid maternity leave.
The schedule 1 amendments would commence on proclamation or 6 months after assent.

Schedule 2 — Modern awards and extra pay
2. Inserts a new modern awards objective (s 34(1)(da)) requiring FWC to consider ‘… the need for additional remuneration for employees working overtime, unsocial irregular or unpredictable hours, weekend, public holiday work and shift work’. This would commence on 1 January 2014 and so would not affect the current award review or annual wage review, but would impact the four year review.

Schedule 3 — FWC to hear bullying complaints
3. Inserts a new Part 6-4B, which provides for workers (as defined under the Work Health and Safety Act) who are engaged or employed by constitutional corporations who reasonably believe they are being bullied to apply to the Fair Work Commission (FWC). The FWC must start to deal with the application within 14 days. Bullying is defined as repeatedly behaving unreasonably towards the worker and the behaviour creates a risk to health and safety. (Note: ‘Reasonable management action carried out in a reasonable manner’ is excluded from the notion of bullying.) The FWC may make any appropriate orders (except orders for compensation). Its orders are enforceable and its usual powers to inform itself, including by requiring a person to attend, are available. It can be expected that every application will result in the employer becoming involved in the FWC proceedings. The provisions are to commence on proclamation or 6 months after assent.

Schedule 4 — Union right of entry to lunch rooms
4. Inserts new provisions in right of entry (Part 3-4), which provide that the union official who has entered to hold discussions with or interview members (or those eligible to be members) should hold them in a place agreed with the employer. Where there is no agreement the official can conduct them where the employees ordinarily take meals or breaks which is provided by the employer for those purposes. The amendments also deal with remote sites and would provide that employers must provide necessary transport and/or accommodation for permit holders where there is no publicly available transport or road or publicly available accommodation. The employer could not charge more than is required to cover the cost. The amendment would also provide that the FWC could hear disputes about location of discussions/interviews, remote site access and also frequency of visits by authorised officers of a particular union seeking entry to hold discussions. These amendments would come into effect from 1 January 2014.

Schedule 5 — FWC functions

5. Providing that the FW Commission’s functions include acting in connection with transfer of business between a state government and a private sector employer, TCF outworkers, promoting co-operative workplace relations and preventing disputes. The provisions are to commence on proclamation with effect from the time of the amending act they are related to.

The final two schedules are minor technical amendments and transitional provisions.

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