The Coalition released its workplace relations policy today with a statement that the policy “will not re-introduce Australian Workplace Agreements, nor will it weaken safety nets or cause any Australian worker to go backwards. There won’t be another WorkChoices – it is dead, buried and cremated. The past is the past and we will not go back to it.

The Coalition has announced that it will “Improve the Fair Work Laws” by:

  • keeping and improving the Fair Work laws;
  • ensuring the laws work for everyone;
  • delivering a genuine Paid Parental Leave Scheme;
  • ensuring union right of entry provisions are sensible and fair;
  • re-establishing the Australian Building and Construction Commission;
  • providing better protection for members of Registered Organisations;
  • providing practical help to small business workplaces;
  • guaranteeing workers have the right to access fair flexibility;
  • ensuring workplace bullying is comprehensively addressed;
  • creating realistic timeframes for Greenfield agreements;
  • giving underpaid workers a better deal;
  • promoting harmonious, sensible and productive enterprise bargaining;
  • urgently reviewing the Road Safety Remuneration Tribunal; and
  • adopting further recommendations from the Fair Work Review Panel report.

We have examined the detail behind these policy commitments below.

Keeping and improving the Fair Work laws

The Coalition proposes to retain the existing Fair Work Legislation and will implement changes to improve the legislation rather than repeal the existing laws.

The Coalition will also ask the Productivity Commission to undertake an independent review of the Fair Work laws to provide an "objective and comprehensive assessment of their operation and impact". It is not clear when any changes, recommended by the Productivity Commission will be implemented.

Paid Parental Leave

The Coalition will establish a Paid Parental Leave Scheme which will provide mothers with 26 weeks of paid parental leave, at full replacement wage (capped at $150,000) or the national minimum wage (whichever is greater) plus superannuation.

Union right of entry

The Coalition proposes to limit the right of entry provisions under the current legislation. The key features of the right of entry regime proposed by the Coalition are:

  • A union will only be able to enter a workplace if:
  1. the union is covered by an enterprise agreement that applies to the workplace; or
  2. the union is a bargaining representative seeking in good faith to make a workplace agreement to apply in that workplace; and
  3. union members in the workplace have requested the union’s presence.
  • If a workplace is covered by a modern award or enterprise agreement that does not cover a particular union, union access will only be permitted if:
  1. the union can demonstrate they have, or previously have had, a lawful representative role in that workplace; and
  2. there is evidence that the workers or members have requested the presence of a union.
  • The Fair Work Commission will have power to resolve disputes regarding frequency and to ensure the rules are enforced; and
  • Union officials will be provided with photographic entry permits (which may be required to be produced upon request).

The Coalition will not implement Labor’s recent proposed amendments to make meal rooms or break areas the default locations for union officials to conduct interviews or hold discussions with employees.

The changes above will not impact on union right of entry provisions to investigate breaches affecting their members, representing a member in a dispute, investigating health and safety breaches or the special entry provisions for outworkers in the textile, clothing and footwear sector.

Re-establishing the Australian Building and Construction Commission

The Coalition will re-establish the Australian Building and Construction Commission (ABCC).

Protection for members of Registered Organisations

Registered industrial organisations and their officials will be subject to the standards that companies and directors are currently held to under the Corporations Act 2001. This includes the introduction of criminal penalties and an increase in fines for breaches of certain duties. Financial disclosure and reporting guidelines under the current Fair Work (Registered Organisations) Act 2009 will be reformed to more closely align them to the corporations law and ASX corporate governance rules.

In order to enforce and police the expanded reporting and compliance obligations on registered organisations, the Coalition propose to establish a new body, the Registered Organisations Commission, who would absorb the role of the current registered organisations enforcer held by the General Manager of the Fair Work Commission. The Registered Organisation Commission would have enhanced policing powers, similar to those held by ASIC, and would be independent of the Government but required to report to Parliament and appear before the Senate Estimates.

Providing practical help to small business workplaces

The Coalition will:

  • develop a ‘Your First Employee’ guide to assist small businesses employ new workers;
  • maintain a Small Business helpline to provide assistance to smaller workplaces;
  • develop a Small Business Wages App to provide small workplaces with real-time accurate information; and
  • provide potential immunity from pecuniary penalty prosecutions if small business employers pay or apply the wrong employment conditions, provided the employer did not do so deliberately and previously sought advice from the Fair Work Ombudsman on the same issue.

Workplace flexibility

The Coalition will not allow the use of Individual Flexibility Arrangements to be restricted to certain conditions by enterprise agreements and will retain Labor’s ‘Better Off Overall Test’ which will ensure that Individual Flexibility Arrangements will result in workers being better off. The Coalition will also increase the notice period to terminate an Individual Flexibility Arrangement to 13 weeks.

Workplace bullying

The Coalition will support Labor’s proposed amendments to the Fair Work Act 2009 (Cth) to address workplace bullying (see our previous alert). However, the Coalition will require workers to have first sought preliminary help, advice or assistance from an independent regulator before making a claim to the tribunal.

The Coalition will also expand Labor’s proposed changes to bullying to cover union officials and their conduct towards managers, employers and workers.

Greenfield agreements

“Good faith bargaining” rules will be introduced for negotiations with unions for enterprise agreements for new projects (“Greenfields Agreements”). Negotiations will be required to be completed within three months of a project starting and, if not completed within this time, the Fair Work Commission will be given powers to make and approve the agreement if it is satisfied that the agreement (i) provides for pay and conditions which are consistent with prevailing industry standards; and (ii) passes the existing “Better Off Overall Test” and “Public Interest Test” under the current Fair Work Act.

Businesses will only be required to negotiate with a union that covers a majority of workers to be employed on site. The Fair Work Commission will be required to make that union a party to the Greenfield agreement if it is approved.

Underpayment claims

The Coalition will ensure that workers who have been underpaid are provided with the interest earned on money which has been recovered by the Workplace Ombudsman for underpaid workers. 

Enterprise bargaining

The Coalition proposes three reforms in the area of enterprise bargaining.

Firstly, the Coalition will amend current laws to allow protected industrial action to occur only after there has been “genuine and meaningful” talks between workers and business at the workplace. The Fair Work Commission’s authorisation of protected industrial action will only occur after it is satisfied that genuine and meaningful talks have taken place.

Secondly, employers and workers will have to satisfy the Fair Work Commission that the parties have discussed productivity as part of the enterprise agreement negotiation process prior to the Commission’s approval of the agreement. Productivity improvements must be considered but do not need to be agreed as a condition of approval.

Lastly, the Fair Work Commission will be required to be satisfied that claims in support of protected industrial action (i) are not exorbitant or excessive, having regard to the conditions at the workplace and in the industry in which it operates; (ii) are fair and reasonable having regard to the conditions and the workplace and the industry in which it operates; and (iii) would not adversely affect productivity.

The Road Safety Remuneration Tribunal

The Coalition will review the operation of the Road Safety Remuneration Tribunal.

Recommendations from the Fair Work Review Panel

The Coalition will implement the following recommendations which have been made by the Fair Work Review Panel but not implemented by the Government:

  • That employees do not accrue annual leave while absent from work and in receipt of workers’ compensation payments (Recommendation 2);
  • That an employer and employee must hold a meeting to discuss a request for extended unpaid parental leave, unless the employer has agreed to the request (Recommendation 3);
  • That annual leave loading is not payable on termination of employment unless a modern award or enterprise agreement expressly provides to that effect (Recommendation 6);
  • That the Commonwealth, state and territory governments expedite the development of a national long service leave standard with a view to introducing it by 1 January 2015 (Recommendation 7);
  • That the ‘Better Off Overall Test’ be improved to appropriately account for non-monetary benefits (Recommendation 9);
  • That the defences for alleged breaches of flexibility terms in individual flexibility arrangements be clarified (Recommendation 11);
  • That the notification period to terminate flexibility arrangements increase from 28 days to 90 days (Recommendation 12);
  • That the interaction of model flexibility terms in enterprise agreements be clarified (Recommendation 24);
  • That the Government monitors the application of the ‘Better Off Overall Test’ to ensure it is applied appropriately (Recommendation 25);
  • That an application for a protected action ballot order only be made when bargaining for a proposed agreement has commenced (Recommendation 31);
  • That when an employee seeks to transfer to a related entity of their current employer, they will be subject to the terms and conditions of employment provided by the new employer (Recommendation 38);
  • That the Fair Work Commission be provided with clearer powers to dismiss proceedings due to non-attendance of a party (Recommendation 43); and
  • That the central consideration about the reason for adverse action be the subjective intention of the person taking the alleged adverse action (Recommendation 47).

The policy will now be debated in the public arena prior to the election. The Coalition certainly seems to have been careful to avoid the political consequences of WorkChoices style policy reform. While many of the changes will be welcomed by business, there will be some disappointment particularly in respect of the enterprise bargaining rules. Also the detail of the changes to flexibility agreements will have to be seen before the utility of these arrangements can be assessed.