Government responds to employers: FWAct

News

Government responds to employers: FWAct

The Federal Government has today introduced legislation to amend the Fair Work Act. Flexibility terms in modern awards and enterprise agreements will now have to deal with hours of work, overtime rates, penalty rates, allowances and leave loading as a minimum. The BOOT will now take into account non-monetary benefits when deciding whether a worker is better off.

WantToReadMore

Get unlimited access to all of our content.

The Federal Government has today introduced legislation to amend the Fair Work Act. Flexibility terms in modern awards and enterprise agreements will now deal with hours of work, overtime rates, penalty rates, allowances and leave loading as a minimum. The better off overall test (BOOT) will now take into account non-monetary benefits when deciding whether a worker is better off.
 
As reported previously on WorkplaceInfo, the amendments implement the Government’s response to a number of outstanding recommendations of the June 2012 report of the Fair Work Review Panel. The previous Labor government had been heavily criticised for failing to implement these recommendations; instead amending the Act last year in a number of ways outside of the Panel’s recommendations, most notably providing easier right of entry to workplaces for unions.

The Fair Work Amendment Bill 2014 (‘the Bill’) will amend the Fair Work Act 2009 as follows (see also: the Bill’s Explanatory Memorandum).

Flexibility terms in awards and agreements
 
Flexibility terms in enterprise agreements will have to provide, as a minimum, that individual flexibility arrangements deal with when work is performed, overtime rates, penalty rates, allowances and leave loading.
 
Flexibility terms in modern awards and enterprise agreements will have to provide for 13 weeks’ notice of unilateral termination of individual flexibility arrangements.
 
The ‘BOOT’ will be allowed to take non-monetary benefits into account when determining whether an employee is better off overall under an individual flexibility arrangement.
 
Individual flexibility arrangements will have to include a statement by the employee setting out why he or she believes the arrangement meets his or her genuine needs and leaves him or her better off overall at the time of agreeing to the arrangement.
 
Employers will be given a defence against an alleged contravention of a flexibility term if they reasonably believed the requirements of the term were complied with at the time of agreeing to a particular individual flexibility arrangement.
 
(Fair Work Review Panel recommendations 9, 11, 12 and 24)
 
Protections for workers
 
Employment Minister Eric Abetz has announced that in addition to the current protections for employees making IFAs, additional protections will include:
    • an IFA cannot be a condition of employment
    • only a worker can approach an employer for an IFA
    • an employer cannot force an employee to sign an IFA, and
    • the employee must provide a statement to the employer saying how the IFA meets their genuine needs and how they consider themselves better off overall.
Greenfields agreements
 
The amendments introduce a new process for the negotiation of single-enterprise greenfields agreements, via:
    • extending the principle of good faith bargaining to the negotiation of these agreements; and
    • introducing an optional three-month negotiation timeframe for the parties to reach agreement. An employer will be able to apply to the Fair Work Commission (FWC) to approve the agreement where agreement cannot be reached with the union(s) after the three-month period. The existing approval tests under the Fair Work Act will be retained with a new requirement to ensure that the agreement is consistent with prevailing industry standards.
Transfer of business
 
When an employee is voluntarily employed with an associated entity of his or her former employer before the termination of the employee’s employment with the old employer, this will not be a transfer of business under Part 2-8 of the Fair Work Act. Similar amendments are also made in relation to Part 6-3A of the Fair Work Act. (Fair Work Review Panel recommendation 38)
 
Extending unpaid parental leave
 
Employers must not refuse a request for extended unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request (Fair Work Review Panel recommendation 3).
 
Annual leave loading on termination
 
Untaken annual leave is to be paid out upon termination of employment as provided by the applicable industrial instrument (recommendation 6).
 
Accruing/taking leave on workers compensation
 
Employees will not be able to take or accrue leave during a period in which they are absent from work and in receipt of workers’ compensation (recommendation 2).
 
Right of entry
 
The Government will repeal the amendments made last year to the Act that require an employer or occupier to facilitate transport and accommodation arrangements for permit holders exercising entry rights at work sites in remote locations.
 
New eligibility criteria will apply to determine when a union may enter premises for the purposes of holding discussions or conducting interviews with one or more employees or textile, clothing and footwear award workers. In summary, if the organisation is covered by an enterprise agreement, the union may enter the premises for the purposes of: holding discussions with one or more employees who perform work on the premises; whose industrial interests the union is entitled to represent; and who wish to participate in those discussions; if the enterprise agreement applies to the work performed, and the union is covered by the agreement. The union must give notice of the entry.
 
If the union is not covered by an enterprise agreement, a union may enter the premises for the purposes of holding discussions with workers who perform work on the premises and whose industrial interests the union is entitled to represent and who wish to participate in those discussions, if, in essence, it is invited by the workers.
 
Also being repealed are the amendments made by the Fair Work Amendment Act 2013 relating to the default location of interviews and discussions. The pre-existing rules will be reinstated. Union officials will be required to comply with a reasonable request by the employer to hold discussions in a particular room.
 
The FWC’s capacity to deal with disputes about the frequency of visits to premises for discussion purposes will be expanded.
 
Protected action ballots
 
Applications to the FWC for a protected action ballot order will not be able to be made unless bargaining has commenced (recommendation 31).
 
Unfair dismissals
 
Subject to certain conditions, the FWC will not have to hold a hearing or conduct a conference when determining whether to dismiss an unfair dismissal application under section 399A or section 587 (recommendation 43).
 
Section 399A provides that an employer may apply to the FWC to dismiss an employee’s application if the FWC is satisfied the applicant has unreasonably failed to attend a conference or a hearing held by the FWC, or failed to comply with a direction or order of the FWC, or failed to discontinue the application after a settlement agreement has been concluded.
 
Section 587 provides that the FWC may dismiss an application if it is frivolous or vexatious, has no reasonable prospect of success or is not made in accordance with the Act. The FWC is also able to dismiss an application on its own initiative, or on application.
 
Unclaimed monies
 
The Fair Work Ombudsman will be able to pay interest on unclaimed monies.
Post details