Fair Work Act amendments

The  Fair Work Amendment Act 2015 (Cth) ("Amendment Act") came into force on 27 November 2015.  This Act introduced some key changes to unpaid parental leave arrangements, requirements for greenfields agreements and protected action ballot orders. 

An employee has the right to request up to an additional 12 months' unpaid parental leave after the employee has taken their initial 12 months' unpaid leave under the Fair Work Act, where employers can only refuse such request on "reasonable business grounds". Amendments now require that before any refusal, an employer must provide a reasonable opportunity to discuss a request.

The Amendment Act now also allows employers to take a proposed greenfields agreement to the Fair Work Commission ("FWC") for approval if a deal has not been struck with relevant union parties within 6 months of a bargaining process commencing.

The Amendment Act also clarifies that employees are restricted from applying for a protected action ballot order (required before seeking to take protected industrial action) unless a bargaining period has commenced.

Immigration law developments and new sanctions against charging for migration outcomes

On 18 March 2015, Assistant Immigration Minister Michaelia Cash released the then-Abbott Government's response to a review into allegations of fraud, and abuse of Australia's 457 skilled visa program.  The Government announced, at the time, that it will adopt most of the review's 51 recommendations in order to tighten migrant worker laws. The Government has flagged that any reform agenda is likely to take effect in 2016, subject to key stakeholder consultation.

Separately, the Commonwealth Parliament passed the Migration Amendment (Charging for a Migration Outcome) Act which came into effect on 30 November 2015.  This legislation makes it unlawful for a person to ask for, offer, give or receive a benefit in return for a migration outcome in relation to certain skilled work visa programs.

The new law imposes strict criminal and civil penalties on sponsors and third parties who engage in prohibited conduct including up to 2 years imprisonment, fines of up to A$64,000 for individuals and A$324,000 for body corporates, and visa cancelation.

For further information: Understanding Temporary Work Visas in Australia (HR eSource 18 August 2015), New sanctions against charging for migration outcomes (HR eSource, 7 December 2015)

Genuine redundancies

A number of matters before the FWC in 2015 have addressed the issue of  the extent to which redeployment to contractor roles must be considered in order to make out a "genuine redundancy" defence to a claim for unfair dismissal under section 389(2) of the Fair Work Act 2009 (Cth).  The Act provides that employers can only make an employee redundant if it would have been unreasonable in all the circumstances to redeploy the employee.  The FWC affirmed that it is appropriate for employers to review labour hire arrangements and consider redeployment opportunities for redundant employees in lieu of using labour hire staff, or in lieu of using overtime practices where it is reasonable to do so.

Although, the FWC did confirm that redeployment by displacing labour hire workers would not be feasible where it constrained flexibility and added to costs.  In one particular case, the Clermont Open Cut coal mine did not need to terminate engagement of labour hire workers in order to be able to offer their positions to employees who had been made redundant.  Brown and Ors v Clermont Coal Operations Pty Ltd T/A Clermont Open Cut [2015] FWC 3862.

For further information: Genuine redundancy weighed against reasonable redeployment opportunities with labour hire contracts (HR eSource, 17 September 2015)

4-Year modern awards review

The FWC continued the first of its four-yearly review of modern awards, as mandated by the Fair Work Act 2009 (Cth), throughout 2015. 

Key issues considered by the FWC included considering extending time off in lieu provisions to a number of modern awards, and inserting provisions in some awards to allow employers to deal with excessive annual leave, family friendly provisions and support for victims of domestic violence.   Employers should be sure to review modern awards that apply to their employees following this review process.

For more on this process see: Fair Work Commission finds that performance management is not bullying (HR eSource, 9 July 2015), Time for Time: FWC proposes time in lieu to replace overtime pay (HR eSource, 31 July 2015)

Bench Book

The FWC published a small number of outcomes within its bullying jurisdiction during 2015. The FWC also published a "Bench Book" on 18 September 2015 to assist parties lodging or responding to unfair dismissal applications under the Fair Work Act 2009 (Cth).  The bench book provides a general guide as to matters relevant to a complaint and the process likely to be followed in relation to a bullying complaint to the FWC.

This bench book can be accessed from the FWC website.

Increase to minimum wages

On 2 June 2015, the Fair Work Commission’s Panel for annual wage reviews released its Annual Wage Review decision for FY16. The decision increased minimum award wages across the board by 2.5%, effective 1 July 2015.  As a result of this decision, the weekly minimum wage increased from A$640.90 to A$656.90 (an increase of A$16) and the hourly minimum wage increased from A$16.87 to $A17.29 (an increase of 42 cents).

The Panel referred to a reduction in inflation and aggregate wages growth as significant contributing factors for the decision to fix the increase at 2.5%, which is 0.5% less than last year’s increase.