During the lead-up to its win in the 2013 federal election, the Coalition foreshadowed that while it intends to keep the current Fair Work laws, it will consider introducing a number of changes and initiatives which, if implemented, will impact on employment laws in Australia. 

Whether these proposed changes and initiatives come to fruition will depend on the make-up of the new Senate where the Coalition will not have a majority and, at least until July 2014, the Greens hold the balance of power.  Despite this, employers should familiarise themselves with the proposed changes and initiatives, and consider where contingencies might be put in place to accommodate the proposed changes in their workforce planning should they occur.

A summary of the changes and initiatives proposed by the Coalition is set out in this article, along with some steps employers can take in preparation for the implementation of these changes and initiatives.

Workplace bullying

The Coalition proposes to retain the recent amendments to the Fair Work Act 2009 (Cth) (Act) dealing with bullying (further details of which are in our previous update here) with two proposed modifications:

  • before applying for an order that bullying stop, a worker must first seek preliminary help, advice or assistance from an independent regulator
  • the laws will be expanded to include union officials and their conduct towards managers, employers and workers.

What will this mean for employers?

Employers should continue to prepare for the introduction of the new bullying jurisdiction of the Fair Work Commission on 1 January 2014, and should closely monitor the proposed changes as there will be a need to further review policies and processes if the Coalition’s proposals are implemented.

Paid parental leave scheme

The Coalition proposes to introduce a new paid parental leave scheme which will operate from 1 July 2015.  The Coalition’s scheme will replace the current paid parental leave scheme (details of which can be found in our previous updates here and here

Under the Coalition’s proposed scheme, mothers who satisfy the existing work test will be eligible for 26 weeks’ paid parental leave, paid at the greater of the employee’s actual wage (capped at $150,000) or the national minimum wage.  In addition, superannuation contributions will be made at the compulsory superannuation rate.

Further, under the Coalition’s scheme, a period of up to two weeks of the 26 weeks’ paid leave entitlement may be taken by the child’s father, with that leave paid at the lesser of the father’s actual wage and the mother’s actual wage, but not at a rate less than the national minimum wage.

Payments made under the Coalition’s proposed scheme will be paid and administered through the Family Assistance Office.

What will this mean for employers?

Employers should review their existing paid parental leave schemes (particularly those set out in enterprise agreements) and consider whether changes need to be made to accommodate the proposed, more generous, paid parental leave scheme.

Superannuation

The Coalition proposes to delay the introduction of previously announced increases to the level of compulsory superannuation contributions for two years.  This will mean that the minimum level of superannuation contributions will be:

Click here to view table.

What will this mean for employers?

Employers should monitor these changes so that regard can be had to the delayed increases to the minimum level of compulsory superannuation contributions when reviewing salaries and budgeting in future years.

Individual flexibility agreements

The Coalition proposes to extend the notice period required to terminate an individual flexibility agreement from 28 days to 13 weeks.  In addition, the Coalition proposes to remove the ability for an enterprise agreement to restrict the use of an individual flexibility agreement.  However, individual flexibility agreements will still be subject to the existing better off overall test.

What will this mean for employers?

While the Fair Work Commission has already taken steps to vary modern awards to increase the period of notice that must be given to terminate an individual flexibility agreement, employers should closely monitor the introduction of these changes as there will be a need to modify the mandatory individual flexibility agreement provisions in enterprise agreements moving forward if the proposed changes are implemented.  The proposed extension of the notice period to terminate an individual flexibility agreement will mean that an individual flexibility agreement is a more practical option for employers and employees.

Enterprise bargaining

The Coalition proposes to prohibit protected industrial action until there have been genuine and meaningful talks between workers and the business during enterprise bargaining, ensuring that employers will not be exposed to protected industrial action outside of actual bargaining for an enterprise agreement. 

In addition, the Coalition proposes that, in order to approve an enterprise agreement, the Fair Work Commission will need to be satisfied that the employer and employees have at least discussed productivity as part of their negotiations.

Finally, the Coalition proposes that in order to grant a protected action ballot to approve protected industrial action, the Fair Work Commission will need to be satisfied that the claims being made in the negotiations are realistic and sensible.

What will this mean for employers?

The Coalition’s proposed changes will ensure that productivity improvements are at the heart of negotiations for an enterprise agreement while the proposed limitations on protected industrial action will protect employers from industrial action when the employer has not agreed to bargain for an enterprise agreement, or where exorbitant and unrealistic claims have been made.

Greenfield enterprise agreements

The Coalition proposes to introduce good faith bargaining rules to cover negotiations for a greenfield enterprise agreement, and require agreement to be reached on the terms of the greenfield enterprise agreement within three months.  If agreement cannot be reached, the employer will be able to take its proposed enterprise agreement to the Fair Work Commission for approval.  The Fair Work Commission will be able to approve the proposed greenfield enterprise agreement if the following conditions are satisfied:

  • the greenfield enterprise agreement passes the existing tests for approval under the Act (including the ‘better off overall test’)
  • the greenfield enterprise agreement provides for pay and conditions that are consistent with the prevailing standards and conditions within the industry for equivalent work.

What will this mean for employers?

Employers establishing new projects will have a greater level of certainty as to the terms and conditions of employment for employees necessary for the project, and will be able to more effectively resist exorbitant claims on behalf of prospective employees.

Union right of entry

The Coalition proposes to change the rules around right of entry to reflect those that were in place in before the Act commenced.  The Coalition proposes that the rules dealing with a union official entering a premises for discussions with employees will only be able to occur if:

  • the union that the official represents is covered by an enterprise agreement that applies at the workplace, or the official is a bargaining representative seeking to make an enterprise agreement to apply at the workplace, and the union has members in the workplace who have requested the union’s presence; or
  • a modern award or enterprise agreement that does not cover the union covers the workplace, the union that the official represents can demonstrate that it has, or has had, a lawful representative role at the workplace and there is evidence that the workers or members have requested the presence of the union.

The Coalition also proposes to reverse the recent changes to the Actdealing with union right of entry, details of which can be found here.

What will this mean for employers?

Employers should review their internal processes dealing with unions exercising right of entry in preparation for the changes to the laws.

Road Safety Remuneration Tribunal

The Coalition proposes to urgently review the operation of the new Road Safety Remuneration Tribunal to determine whether there is a need for the additional level of regulation.

What will this mean for supply chain participants?

While the Road Safety Remuneration Tribunal is yet to make any orders, supply chain participants should monitor any operational review conducted by the Coalition, particularly when addressing any future orders made.

Restoring the Australian Building and Construction Commission

By the end of the year, the Coalition intends to restore the Australian Building and Construction Commission, the building and construction industry watch-dog established by the Howard Government.  At the same time, the Coalition proposes to abolish Fair Work Building and Construction.

What will this mean for employers in the building and construction industry?

Employers in the building and construction industry should closely monitor the proposed re-establishment of the Australian Building and Construction Commission which is likely to introduce a number of additional obligations (particularly in relation to reporting).