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Re-defining the Fair Work Act Ahead of the Upcoming Federal Election

19 August 2013

Re-defining the Fair Work Act Ahead of the Upcoming Federal Election

Dimi Baramili, Associate

In what has been a tumultuous period in federal politics ahead of the upcoming election, it is no surprise that workplace relations reform has taken centrestage, with the Coalition announcing its policy and the Government introducing a raft of reforms to the Fair Work Act 2009 (Cth) (the “FW Act”) through the Fair Work Amendment Bill 2013 (the “FW Bill”), the latter of which is aimed at addressing the concerns of specific groups.

The FW Bill was passed in the last sitting week of parliament, receiving assent on 28 June 2013, although some parts are not due to come into force until 1 January 2014.

The Government has indicated that these reforms are aimed at “strengthening the Fair Work system to provide a comprehensive safety net to protect the most vulnerable in our workforce as well as the exibility that working parents and carers need.”1 They are also the result of the independent Fair Work Act Review, with the Government noting that they “reflect recommendation 1…to include in the functions of the FWC that it should promote cooperative and productive workplace relations.”2

Specifically the reforms target:

  • flexible working and family friendly initiatives;
  • right of entry;
  • amendments to the role of the Fair Work Commission (“FWC”); and
  • the ability to take bullying claims to the FWC.

What are the Changes?

(a) Flexible Work Arrangements + other Family Friendly Initiatives (commenced 1 July 2013)

Although section 65 of the FW Act currently provides scope for individuals who are either a parent or have the responsibility of caring for a child (if they are under school age or under 18 with a disability) to request exible working arrangements in certain circumstances, this right to request exible working arrangements will now be extended to include employees with carer’s responsibilities, parents or guardians of children that are school age or younger, employees with a disability, employees 55 years or older, and employees experiencing or supporting a family or household member who is experiencing family violence.

Currently, a exible work request can be refused on ‘reasonable business grounds’. This term is not defined under the FW Act. However, the reforms now provide some guidance through a non- exhaustive list of ‘reasonable business grounds’ which include:

  • the new working arrangements being too costly;
  • there being no capacity to change the working arrangements of other employees to accommodate the request;
  • it being impractical to change the working arrangements of other employees, or recruit new employees to accommodate the request;
  • the new working arrangements would likely result in a significant loss in efficiency and productivity; and
  • the new working arrangements would likely have a significant negative impact on customer service.
Other changes concerning pregnancy and related leave which commenced 1 July 2013 include:

  • transfer to a safe job now extended to all employees not just those who have at least 12 months service;
  • increasing the period of concurrent parental leave from 3 weeks to 8 weeks; and
  • special maternity leave taken will no longer detract from the amount of unpaid parental leave available to an individual.

(b) Legislated Consideration of Penalty Rates (commencing 1 January 2014)

This has occurred through the insertion of an additional consideration within the modern awards objective via section 134(1)(da) which requires consideration of the need to provide additional remuneration for employees working overtime, shifts, or outside regular working hours (such as on weekends). This has not had an impact on current rates, rather it has been deemed a relevant consideration for the FWC at the next modern awards review.

(c) Right of Entry (commencing 1 January 2014)

These reforms are described in the Explanatory Memorandum to the FW Bill as being designed to appropriately balance the rights of organisations and employees in respect of the entry of permit holders to premises for the purposes of investigations and discussions. The reforms will allow meetings to be held in an area agreed between the parties, and if no agreement is reached, then lunch rooms may be used. The powers of FWC will also be extended so as to allow it to address disputes which concern the frequency of visits, as well as transport and accommodation arrangements, and to enforce appropriate behaviour from permit holders. Amendments will also be made concerning transport and accommodation arrangements for permit holders.

(d) Amendments to the Role of the FWC (Arbitration by Consent Commencing 1 January 2014)

Other amendments to the roles and functions of the FWC will be made, including providing the power to promote cooperative and productive workplace relations and preventing disputes, clarifying their powers during conferences and, most notably, allowing the FWC to arbitrate, by consent, general protections and unlawful termination disputes.

(e) Bullying Reforms (Commencing 1 January 2014)

As we reported in our last edition of Strateg-eyes, the FW Bill will put in place the workplace bullying reforms which emerged from the House of Representatives Standing Committee on Education and Employments’ report ‘Workplace Bullying “We Just Want It To Stop”’. This will mean that a worker within a constitutionally- covered business can apply to the FWC for a remedy in respect of workplace bullying, with the FWC required to deal with the application within 14 days of it being made. In dealing with a complaint, the FWC can generally make any type of order it deems appropriate in respect of the conduct (however it cannot order reinstatement or the payment of compensation). An order will only be made where the FWC is satisfied that the worker has been bullied and that there is a risk that the worker will continue to be bullied. The FWC can also refer the matter to the relevant WHS regulator if appropriate as this remedy will not replace or be a substitute for claims and penalties under WHS legislation.

These reforms have been criticised by many employer groups as swinging the balance further in favour of employees under the FW Act, in particular the amendments to the right of entry provisions, the extension of those employees eligible to request flexible working arrangements and the workplace bullying reforms. Although the Coalition has released its Industrial Relations policy with a comparison of this policy against that of the current government it does not appear to make many changes to this policy. The impact of these reforms remains to be seen, and in particular, whether we will see a significant increase in the amount of claims utilising the FWC bullying jurisdiction. 

  1. Hon Bill Shorten MP Press Release dated 28 June 2013.
  2. Hon Bill Shorten MP Fair Work Amendment Bill 2013 – Summing-up speech, House of Representatives dated 6 June 2013.
Posted in Strateg-Eyes.
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