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TAKE NOTE, ACTION REQUIRED: FAIR WORK AMENDMENTS HAVE BEEN PASSED!

14 Jun 2013

On Thursday 6 June 2013 the Federal Government passed the Fair Work Amendment Bill 2013 (Bill).

This article sets out a summary of the key amendments that the Bill makes to the Fair Work Act 2009 (Cth) (FW Act) and some recommended steps that businesses should take to prepare for the changes.

Background to the Bill

As you may recall, in 2012 the review of the FW Act was completed and the review panel made in excess of 50 recommendations in respect of proposed changes to the FW Act.   As a result of the review panel’s findings, in December 2012, Parliament passed the first tranche of amendments to the FW Act.

In March of this year the Federal Government introduced the Bill, which sets out a second tranche of amendments to the FW Act.

Controversially, some of the amendments proposed by the Bill did not arise from the review panel’s recommendations.

The Bill has also been criticized by a number of employer groups on the grounds that there has been insufficient consultation in respect of some of the more substantive changes brought about by the Bill,  and that the financial costs of the amendments to both businesses and the Government have not been adequately quantified. In this respect we note that the Bill was not accompanied by a financial impact statement or regulatory impact statement.

Despite these concerns, after considerable parliamentary debate and inquiries by committees from both the House of Representatives and the Senate, the Bill was passed late last week (Thursday, 6 June 2013).

Overview of amendments

The Bill amends the FW Act in 6 broad areas. Specifically it:

  1. expands existing family friendly measures;
  2. introduces new anti bullying measures;
  3. makes changes to union right of entry provisions;
  4. amends the modern award review objectives;
  5. creates new functions for the Fair Work Commission (FWC); and
  6. introduces minor technical amendments and transitional provisions.

This article focuses on the most substantive amendments, being (a), (b) and (c).

Family friendly measures

The Bill amends the FW Act in three broad areas to further promote family friendly work practices. It is likely that these amendments will lead to greater numbers of employees taking longer periods of unpaid leave.

In particular:

1) Parental leave provisions in the National Employment Standards (NES) will be amended so that:

  • special maternity leave for pregnancy related illnesses will no longer reduce the period of unpaid parental leave that an employee is eligible to take;
  • the period of unpaid parental leave that parents can take together (ie concurrent leave) will be increased from 3 weeks to 8 weeks and there will be greater flexibility on how and when this leave can be taken; and
  • the entitlement to transfer to a safe job during pregnancy will be extended to employees with less than 12 months’ service (and where no safe job is available, such employees will be entitled to take unpaid leave).

2) The right to request a flexible work arrangement will be extended to a broader range of employees (including carers, over 55’s, the disabled, victims of domestic violence and immediate family/household members providing care or support to such victims).

In addition, the FW Act now sets out a non-exhaustive list of factors that could be taken into account when determining whether there are reasonable business grounds for refusing a request for a flexible work arrangement (including, but not limited to, factors such as cost, impracticability and adverse impact on productivity or efficiency).

3) From 1 January 2014, a new consultation obligation will be inserted into all modern awards (and the model consultation clause for EBAs made after 1 January 2014) which requires employers to consult with employees in relation to changes to regular hours of work.

The obligation also requires the employer to provide the affected employee with information about the proposed changes, actively seek their input into the changes and take their input into account before implementing the change.

This new obligation has been described by the Government as a mechanism to promote discussion and genuine consultation between employers and employees about the impact of changes to hours of work on family responsibilities, and to avoid situations where unilateral decisions are made by employers that adversely impact the employee’s family life.

The new obligation has no application to employees that do not work regular hours or that are not award covered or employed under an EBA made prior to 31 December 2013.

With the exception of the new consultation obligations (which take effect from 1 January 2014), the other “family friendly” measures will take effect from a date to be proclaimed or otherwise within 6 months of the date that the Bill receives royal assent.

Anti bullying measures

The new anti bullying measures have been the most controversial part of the Bill.

In addition to concerns about the perceived lack of consultation in relation to the new  provisions and the likely costs of dealing with applications, the FWC has also expressed concern that it lacks the resources (and possibly the necessary training) to deal with the influx of claims that are expected to arise as a result of the new provisions.

Under the new provisions, a worker (as defined in WHS legislation) who has a reasonable belief that they are being bullied can apply to the FWC for assistance.

The Bill adopts the definition of bullying that has been used by Safe Work Australia in the draft National Code of Practice on the Prevention of Workplace Bullying. Bullying is defined as repeated unreasonable behaviour towards a worker that creates a risk to health and safety (but excludes reasonable management action taken in a reasonable way).

The focus of the anti bullying provisions is on early intervention and prevention, rather than providing compensation for past wrongs. As such:

  • a worker can only make an application in situations where the bullying is still occurring; and
  • where an application is made, the FWC must take action within 14 days.

Consistent with the intention of the provisions, the FWC has broad powers to inform itself about the matter as it sees fit, and make orders to prevent future bullying (although it can not order the payment of compensation or reinstatement). Examples of orders that might be made include an order to:

  • stop certain behavior;
  • review relevant company policies;
  • monitor compliance with relevant policies; or
  • provide information and training to workers.

Whilst the FWC is required to take into account the outcomes of any other investigation of the complaint and other procedures available to resolve the situation, there is no requirement that the worker first raise the issue internally before seeking FWC assistance.

Breach of an order made by the FWC under these provisions exposes the person in breach to prosecution and civil penalties.

There are a number of aspects of these new provisions which remain unclear - including whether both the employer and the relevant bullies will be parties to any application, whether in practice conciliation will be the first step taken to resolve matters and how the FWC will deal with frivolous or vexatious applications.

These new provisions will take effect from 1 January 2014 and will obviously provide employees (and other workers) with an additional avenue for complaint in circumstances where they aren’t happy with the action taken by the company in response to a bullying complaint or where they think they will obtain a better result through the FWC process.

Businesses should take action now to help minimise the likelihood of FWC involvement in bullying claims by taking the steps recommended further below.

Union right of entry

As of last Wednesday the Federal Government had agreed to drop its proposed changes to union right of entry provisions in order to obtain cross bench support. However, following further negotiations with various independents and minor parties, the provisions remained in the Bill and were subsequently passed without alteration.

The primary amendments in relation to union right of entry include:

  • a requirement for the employer and the union to reach agreement on where meetings/discussions with relevant employees will be held and making the lunch room (or such other place where employees ordinarily take meal breaks) the default meeting place where agreement can not be reached; and
  • in respect of remote or isolated workplaces, an obligation on employers to arrange transport and accommodation for union delegates in order to facilitate right of entry, where such transport/accommodation would otherwise not be publically available. It is worth noting that this is simply an obligation to make arrangements in respect of transport and accommodation and that the employer is not required to pay these costs.

These amendments take effect from 1 January 2014.

General protections applications

An additional amendment was added to the Bill late last week which enables the FWC to arbitrate a general protections matter following unsuccessful conciliation and where both parties consent.

At present the FWC can only conciliate a general protections claim and as such the applicant needs file their claim with the Federal Court or Federal Circuit Court in the event that they wish to pursue the matter following an unsuccessful conciliation.

These provisions take effect from 1 January 2014 and may help the parties to resolve claims in a more cost effective and efficient manner.

Recommendations

In light of the pending changes, businesses are advised to take the following steps over the next few months:

• communicate the above changes to decision makers and line managers;
• review and update parental leave and flexible work policies to take into account the amendments to the NES; and
• to minimise the risk of FWC involvement in bullying matters:

  • provide regular training to employees on appropriate and inappropriate workplace behavior;
  • update bullying and complaints handing policies and processes to ensure that they reflect best practice and the draft National Code of Conduct on the Prevention of Workplace Bullying;
  • ensure that line managers are appropriately trained to identify and respond to alleged bullying;
  • increase employee confidence that complaints will be dealt with seriously and properly by communicating to employees the relevant policies and procedures and the steps the company is taking to help eradicate bullying; and
  • ensure that all complaints or bullying are thoroughly investigated and properly dealt with.

If you would like further advice regarding the impact of the FW Act amendments on your organisation or would like us to assist you with implementing the above recommendations, please contact Kristin Ramsey, Associate Director at kristin.ramsey@hyneslegal.com.au or on 07 3193 0542.