Last week, Parliament finally passed the Fair Work Amendment Bill 2014 – originally introduced nearly 2 years ago in February 2014, but not without some significant amendments from the Senate cross benchers. 

In fact, there are only three main areas of the original Bill which survive – changes to break deadlocks in negotiations for a greenfields agreements, changes to prevent unions taking protected industrial action to force an employer to agree to enterprise bargaining and a new requirement for an employer to discuss a refusal to extend parental leave. 

Even the changes to greenfields agreements come with a price – the deadlock must now be 6 months, instead of 3 months. And the amendments will be reviewed after 2 years. 

Other changes did not get through – such as tweaking of unfair dismissal and transfer of business laws, as well as changes relating to annual leave loading and Individual Flexibility Agreements.

What does it mean?

We examine the changes in detail below:

Click here to view table.

However, the Senate removed a series of other provisions from the Bill.

  • Changes to annual leave, so that an employer is not required to pay annual leave loading on termination of employment and that employees do not accrue annual leave while absent on workers compensation. Amongst other things, this means that the current law remains – courtesy Centennial Northern Mining Services Pty Ltd v CFMEU [2015] FCAFC 100 – that where an employee receives annual leave loading when taking annual leave, they are entitled to be paid annual leave loading on unused annual leave on termination of employment.
  • Various changes to the Individual Flexibility Agreements – including 13 weeks notice of termination instead of 4 weeks.
  • An exclusion from the transfer of business provisions where an employee transfers to an associated entity at their own initiative.
  • Limits on unions right of entry – including reversing changes the former Labor Government provisions concerning discussions in lunch rooms.
  • A power for the Fair Work Commission (FWC) to dismiss an unfair dismissal application without a hearing where the application has no reasonable prospects of success or because the former employee fails to attend, comply with directions or comply with a settlement.

Why is it important?

The main significance of the Act is likely to be for new resources projects and other greenfields sites, with a long lead time – who should be able to utilise the greenfields provisions. 

Other than that, the main significance may lie in what was not passed. While it was pragmatic for the Government to do a deal, it has to be observed that the original Bill was modest and stuck closely to the Coalitions pre-election IR policy – which the Government surely had an electoral mandate for. However, given there will be an election in late 2016 (and perhaps even a double dissolution), this does not necessarily mean any future reforms are doomed if the Government is returned.

What happens next?

The Act has not commenced yet – but presumably it won’t be long before it does.  In the meantime, there are two other bills still stuck in Parliament:

  • the Fair Work (Registered Organisations) Amendment Bill 2014 (increasing accountability of officials of registered organisations)
  • the Fair Work Amendment (Bargaining Processes) Bill 2014 – which includes requirement for enterprise bargaining negotiations to include productivity improvements and prevents protected action being taken over excessive claims.

It remains to be seen what will happen to these Bills.

Want more information?

You can find the Act here : Fair Work Amendment Bill 2014