Changes to the Fair Work Act (circa 2013-2014)

What you need to know about recent changes to the Fair Work Act

On 28 June 2013 the Fair Work Amendment Act 2013 (Cth) became law (‘the Amendment Act 2013’). The Amendment Act 2013 brings into operation the second tranche of changes recommended by the 2012 review of the Fair Work Act 2009 (Cth) (‘the FWA’).

The first tranche of changes came into operation from 1 January 2013 under the Fair Work Amendment Act 2012 (Cth) passed on 28 November 2012.  For employers, the most significant change under that Act was the change to the timeframes for lodging an unfair dismissal or unlawful termination claim (both timeframes changed to within 21 days of the termination having effect, from 14 days and 60 days respectively).

The Amendment Act 2013 focuses on the following measures:

  • family-friendly measures;
  • workplace bullying;
  • right of entry into workplaces by officials;
  • genuine consultation regarding rosters/hours of work;
  • protection of ‘penalty rates’; and
  • adverse action powers.

Family-friendly measures from 1 July 2013

From 1 July 2013, new family-friendly measures will come into effect.

Under the family-friendly measures, pregnant women will be entitled to transfer to a safe job regardless of the length of time they have worked for the employer.  If no safe job is available the employee will be entitled to take ‘no safe job leave’.  The employee will be entitled to be paid during ‘no safe job leave’ if the employee meets the eligibility requirements for unpaid parental leave.

Another change is that employees will be able to take special maternity leave (e.g. in instances of pregnancy-related illness or stillbirth) without it reducing their unpaid parental leave entitlement. Employee couples will also be able to take up to 8 weeks (up from 3 weeks) unpaid parental leave at the same time. Employees will also be able to take leave in multiple, separate periods provided that no period of leave is shorter than 2 weeks (e.g. the 8 weeks of leave could be taken in 4 lots of 2 weeks).

Lastly, the family friendly measures have expanded the classes of employees who can request flexible working arrangements. ‘Flexible working arrangements’ includes changes to hours, locations and patterns of work. Previously, employees could only request flexible working arrangements if they were parents/carers of a child under school age or under 18 with a disability for the purposes of assisting the employee to care for the child. The classes of employees who will now be able to request flexible working arrangements include:

  • parents/carers of school-age or younger children;
  • employees with disabilities;
  • employees aged 55 years or older;
  • carers (within the meaning of the Carer Recognition Act 2010 (Cth));
  • employees experiencing violence from a family member; and
  • employees providing care or support to an immediate family member/household member who is experiencing violence from the member’s family.

Employers may still refuse the request on ‘reasonable business grounds’, and a new list of what those grounds might be has been inserted into the FWA by the Amendment Act 2013. This list includes reasons such as:

  • the request is too costly for the employer to implement;
  • there is no capacity to change the working arrangements; and
  • that the new working arrangements would like result in a significant loss in efficiency or productivity.

Anti-bullying measures from 1 January 2014

From 1 January 2014, workers who work for a constitutionally-covered business will be able to apply to the Fair Work Commission (‘the FWC’) for an order to stop bullying in the workplace. Importantly, the term ‘worker’ is not limited to employees.  ‘Constitutionally-covered business’ excludes State government employers, and non-incorporated employers (e.g. sole traders and partnerships).

‘Bullied at work’ is defined as when an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers to which the worker belongs, while the worker is at work, and the behaviour creates a risk to health and safety. Bullying expressly does not include ‘reasonable management action carried out in a reasonable manner’.

The FWC will have to deal with the complaint within 14 days of receipt. The FWC can make whatever order it deems appropriate, other than requiring payment of a fine, to prevent the worker from being bullied at work.

SafeWork Australia has prepared a draft model Work Health and Safety Code of Practice for Preventing and Responding to Workplace Bullying.  Public comment in relation to the draft guide closed on 15 July 2013. Although the guide has not yet been finalised, it is a useful reference point for employers to start preparing their internal policies and procedures in the lead up to the commencement of the anti-bullying measures.

Right of entry changes from 1 January 2014

The Amendment Act 2013 also introduced changes to right of entry rules that will affect the rights and powers of union officials who hold entry permits. These changes take effect from 1 January 2014.

The changes are:

  • interviews with employees must be held in an area agreed between the business and the permit holder, or otherwise in the place where the employees of the business take lunch breaks; and
  • the FWC will be able to deal with disputes about the frequency of visits (if diverting ‘critical resources’ of the business), accommodation and transport arrangements for permit holders (for businesses in remote areas), and the behaviour of permit holders while they are receiving accommodation or transportation.

Genuine consultation regarding roster/hours of work from 1 January 2014

From 1 January 2014 all Modern Awards will include a provision that requires all employers to ‘genuinely consult’ with employees regarding a change to their regular roster or ordinary working hours.  Enterprise Agreements made on or after 1 January 2014 will also require a consultation provision to the same effect.

This means that employers will be required to:

  • provide information to the employees about the change;
  • invite employees to give their views about the impact of the change; and
  • consider any views put forward about the impact of the change.

Protection of penalty rates from 1 January 2014

The ‘modern award objective’ will be amended from 1 January 2014 to ensure that any new Modern Awards or any variations to existing Modern Awards made by the FWC will have to take into account the need to provide additional pay for employees working overtime, unsocial, irregular or unpredictable hours, weekends/public holidays, or performing shift work. This change is designed to protect penalty rates for those employees.

Adverse action: extension and clarification of the FWC’s powers from 1 January 2014

From 1 January 2014, the FWC will be able to arbitrate matters by the consent of the parties. There are very limited appeal rights for arbitrated matters, namely where it is in the public interest to allow the appeal, or (for appeals on questions of fact) because of a significant error of fact.

The Amendment Act 2013 has also given the FWC the power to award costs against a party to an unlawful termination dispute (and/or their legal representatives or paid agents) on the basis of an unreasonable act or omission by the party in connection with the conduct or continuation of the dispute.

Lastly, the Amendment Act 2013 has clarified the FWC’s ability to mediate, conciliate, make a recommendation or express an opinion in conferences. This amendment expressly states that it does not intend to limit what the FWC may do at a conference.

If you would like to find out more about the amendments and how they affect your business, or need assistance with a particular employment law issue, please call us on 1300 654 590.

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The information contained in this post is current at the date of publishing – 5 October 2013

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