16 November 2015

Changes to the Fair Work Act: what they mean for you

The Government’s Fair Work Amendment Bill 2014 (Cth) (the “Bill”) has been passed after months of protracted cross-bench negotiations. While pared back significantly from the original bill presented to Parliament in February, the Bill has introduced three changes which employers should be aware of.

1.  Enterprise agreements

Employers negotiating single-enterprise greenfields agreements (that is, enterprise agreements in relation to a new enterprise which has not yet employed any employees) may now apply to the Fair Work Commission (“FWC”) to have the agreement approved if negotiations have been ongoing for six months and not resulted in agreement.

2.  Protected action ballot orders

An application for a protected action ballot order (required before industrial action can be taken lawfully) may no longer be made by a bargaining representative unless bargaining has commenced (for example, because the employer has agreed to bargain or a majority support determination has been obtained from the FWC). This change is intended to ensure that employees do not “strike first, bargain later”.

3.  Unpaid parental leave

If an employee on a period of unpaid parental leave makes a request to extend the period of his or her leave, an employer may no longer refuse the request unless the employee has been given a reasonable opportunity to discuss it. This is in addition to the existing requirement that an employer may only refuse such a request on reasonable business grounds. There is still no right of appeal by an employee if their request is refused.

The Government was unable to secure enough support to pass many of its proposed changes. Amendments in relation to the following were rejected:

  • annual leave – an amendment to make clear that annual leave is to be paid out as provided by any applicable industrial instrument;
  • leave accruals – an employee cannot take or accrue leave during a period that they are absent from work and in receipt of workers’ compensation;
  • right of entry – including provisions to repeal the transport and accommodation arrangements and default meeting place;
  • individual flexibility arrangements – including requiring a statement of acknowledgment that an employee is better off overall under the arrangement and changes to how such arrangements may be terminated; and
  • transfer of business provisions – will not apply to an employee who, at his or her own initiative, seeks employment with an associated entity of his or her former employer without his or her employment having been terminated first.

For advice on what these changes might mean for your organisation, contact one of the PCS Team on (02) 8094 3100.

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