What’s happening in workplace relations in 2014?

Analysis

What’s happening in workplace relations in 2014?

2014 is shaping up to be a year of major reviews that will be heard before the Fair Work Commission, as well as the bedding down of changes to the Fair Work Act that take effect on 1 January. Also, modern award transitional provisions are due to finish during the course of 2014.

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It’s that time of year when WorkplaceInfo looks at the anticipated workplace relations changes for the next 12 months.
 
2014 is shaping up to be a year of major reviews that will be heard before the Fair Work Commission (FWC), as well as the bedding down of changes to the Fair Work Act 2009, which take effect on 1 January. Also, modern award transitional provisions are due to finish during the course of 2014.
 
Here’s a preview of what you need to keep on top of . . .
 
Fair Work (Amendment) Act 2013
 
The follow changes apply from 1 January 2014:
 
New anti-bullying measures
 
Employees who are being bullied at work will be able to apply to the FWC for an order to stop the bullying. The FWC will have to start dealing with the matter within 14 days.
 
Changes to right-of-entry rules
 
These changes affect the rights and powers of officials of organisations who have entry permits to enter businesses. The changes will mean:
    • interviews and discussions with employees must be held in an area that the business and permit holder agree to (lunch rooms can be used if no agreement can be reached)
    • the FWC will be able to deal with disputes about the frequency of visits
    • the FWC will be able to:
      • deal with disputes about accommodation and transport arrangements
      • ensure appropriate conduct by permit holders while they are receiving accommodation or being transported under the arrangements.
Note: The Federal Government has signalled changes to the Fair Work Act with respect to right of entry to worksites and negotiations for greenfields sites. As the passing of this legislation will not occur until next year’s parliamentary session, the above provisions will apply to employers from 1 January 2014 until the proposed changes become law.
 
Genuine consultation on changes to rosters and hours of work
 
All awards and agreements will have to include a term that requires employers to genuinely consult with their employees about changes to their regular roster and ordinary working hours. When employers want to change an employee’s regular roster or ordinary hours of work they will have to:
    • give information to employees about the changes
    • invite employees to air their views about how the changes will affect them 
    • consider the employees views.
Agreements will also require employers to consult about any major change to a workplace that is likely to have a significant effect on the employees.
 
Protection of penalty rates
 
The modern award objective in the Fair Work Act will be amended to protect penalty rates. This will mean that the Fair Work Commission, when making or changing a modern award, will have to take into account the need to provide additional pay for employees working:
    • overtime; 
    • unsocial, irregular or unpredictable hours; and/or 
    • on weekends or public holidays. 
4-yearly review of modern awards
 
The Fair Work Act (s156) provides that the Fair Work Commission (FWC) must conduct a four-yearly review of modern awards starting as soon as practical after the fourth anniversary of the commencement of the Act. This means as soon as practicable after 1 January 2014.
 
In the review of modern award, the FWC:
    • must review all modern awards
    • may vary modern awards
    • may make one or more modern awards
    • may revoke modern awards.
Minimum award wages may be varied, but only if the FWC is satisfied that the variation is justified by work value reasons.
 
The FWC must review each modern award in its own right, although the review of more than one modern award can be done at the same time.
 
At the time of publication, no timetable for submissions on the Award Review has been published by the FWC.
 
Review of superannuation in modern awards
 
Most modern awards contain a superannuation clause requiring an employer to make sufficient superannuation contributions to a superannuation fund for the benefit of an employee to avoid the employer having to pay the legislated superannuation guarantee charge.
 
The contributions are to be made to a superannuation fund specified in the modern award, a default fund, unless the employee has chosen another fund for the contributions.
 
Beyond the Transitional Review of modern awards that commenced in 2012, the Fair Work Commission is responsible for further reviewing superannuation in relation to modern awards in 2013 and then as part of the four-yearly review of default fund terms of modern awards commencing as soon as practicable after 1 January 2014.
 
A draft timetable is due be published shortly by the FWC.
 
Annual Wage Review 2013–14
 
The Fair Work Act provides for an annual wage review conducted by the Expert Panel for annual wage reviews of the FWC. The Expert Panel comprises the president, three other full-time members and three part-time members.
 
The annual wage review is generally conducted in the second half of the financial year from about March to June.
 
The process involves:
    • written submissions from interested organisations and individuals
    • consultations before the Expert Panel
    • research commissioned by the Expert Panel.
In conducting the annual wage review, the Expert Panel is required under the Act to review:
    • minimum wages in modern awards and transitional instruments
    • the national minimum wage order from the previous annual wage review.
Ending of transitional wage arrangements in modern awards
 
From the first pay period commencing 1 July 2010, phasing-in of transitional arrangements with respect to various monetary entitlements under modern awards were adjusted (up or down) by a percentage if there was a difference in the current rate prescribed by a pre-reform federal award or a NAPSA and the rate prescribed for the relevant classification under the Modern Award. The phasing-in process has applied over a four-year period, which will cease on 1 July 2014.
 
This means that from 1 July 2014, the minimum wage for the relevant classification will be that prescribed by the applicable modern award.
 
Ending of transitional redundancy pay provisions in specific modern awards
 
A modern award may contain a ‘transitional arrangements’ clause that continues to recognise more beneficial redundancy pay provisions contained in a previously applicable NAPSA. For example, cl 14.5 of the Clerks — Private Sector Award 2010 provides that an entitlement to redundancy pay under the terms of a previously applicable NAPSA will apply where the employee would have been entitled to redundancy pay in excess of the employee’s entitlement to redundancy pay under the NES.
 
For example, the Clerical and Administrative Employees (State) Award (a NSW NAPSA) provided a more beneficial scale of redundancy payments than the NES, and defined a week’s pay for redundancy pay purposes to include over award payments, shift penalties and allowances. Consequently, this redundancy pay term of the NAPSA would override the NES.
 
Other modern awards with transitional arrangements with respect to redundancy include General Retail Industry Award 2010 and Commercial Sales Award 2010. Reference should be made to the relevant modern award to determine an employee’s entitlement to more beneficial redundancy pay in this circumstance.
 
The clause will cease to operate on 31 December 2014.
 
Ending of accident pay provisions in modern awards
 
A modern award may have a provision that recognises the payment of accident pay, if it was a term of a previous NAPSA. Accident pay is the amount paid by the employer which represents the difference between the employee’s rate of workers compensation and the relevant award rate (or actual rate) of pay.
 
Modern awards that provide accident pay as prescribed by a previous NAPSA include:
    • Building and Construction General On-Site Award 2010
    • Clerks — Private Sector Award 2010
    • Commercial Sales Award 2010
    • Meat Industry Award 2010
    • Road Transport & Distribution Award 2010
    • Vehicle Manufacturing, Repair, Services and Retail Award 2010
The relevant clause will cease to apply on 31 December 2014.
 
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