Parliament has finally passed the Fair Work Amendment Bill 2014 (Bill) on 11 November 2015 after a long pause in the Senate.

Background

The Bill was originally introduced to parliament on 27 February 2014 and has been the subject of much debate between the House of Representatives and the Senate. The Bill aims to implement elements of ‘The Coalition’s Policy to Improve Fair Work Laws’. 

The original Bill contained a larger number of proposed amendments than the Bill which was recently passed. The amendments previously proposed included changes to the right of entry framework, transmission of business and individual flexibility agreements. These amendments were not included in the current Bill as the government was unable to attract sufficient support to get these changes across the line in the Senate. 

The Bill was assented to on 26 November 2015 and comes into force today, 27 November 2015. 

Amendments to the Act

The amendments to the Fair Work Act 2009 (Cth) (Act) which are likely to affect employers include:

  • the requirement that an employer must not refuse a request for extended unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request
  • reforms to greenfields agreements negotiations, and 
  • the requirement that an application for a protected action ballot order can only be made once an employer has agreed, or been ordered by the Fair Work Commission (the Commission), to bargain. 

Unpaid parental leave extensions

Under the Act, an employee has the right to request an additional 12 months’ unpaid parental leave after an initial 12 months’ unpaid leave. The employer can only refuse such a request if there are reasonable business grounds for doing so and the employer must provide written reasons for their decision. As a result of the passing of the Bill, there is now a requirement for an employer to give an employee a reasonable opportunity to discuss their request to extend the period of unpaid parental leave, before the employer can refuse the employee’s request. 

Greenfields’ agreements

To assist in addressing concerns over inappropriate bargaining conduct occurring between parties negotiating greenfields agreements, the Bill makes significant amendments to provisions of the Act dealing with the negotiation of greenfields agreements.

Currently, the Act does not require parties involved in greenfield negotiations to bargain in good faith.  The definition of a bargaining representative has now been extended to include persons negotiating greenfields agreements.  This will have the effect that those parties will now be required to comply with the good faith bargaining requirements.

The Bill also prescribes a six month time frame for the parties to reach agreement on the negotiation of a greenfields agreement.  This will allows an employer to apply to the Commission for approval of its greenfields agreement if agreement cannot be reached with the relevant union during the six month period.  The Commission will be required to approve the agreement if it is satisfied that the pay and conditions in the greenfields agreement are consistent with the prevailing conditions within the relevant industry for equivalent work.  

Protected action ballot orders

Currently under the Act, industrial action must be authorised by a ballot of employees to be legal.   In order to undertake the ballot, the Commission must make an order approving it – a Protected Action Ballot Order (PABO).  The Bill inserts a new requirement that before an application for a PABO is made, bargaining must have commenced.  Bargaining will only be said to have commenced if:

  • the employer has agreed to bargain, or 
  • the Commission has issued a:
    • majority support determination
    • scope order
    • low-paid authorisation

in relation to the agreement.  This change is designed to overcome the issue of unions obtaining a PABO even though the employer may have refused to bargain.