On 21 March 2013, the Government introduced the Fair Work Amendment Bill 2013 (Amendment Bill) into federal Parliament. The Amendment Bill includes the Government’s further responses to the 2012 Fair Work Act Review,[1] following the passage of its first round of amendments implementing recommendations of the Review in November last year.[2] In addition, the Bill reflects several other “key policy priorities” of the Government.[3] In this In Brief, we examine the key aspects of the Amendment Bill.

As expected, the Amendment Bill contains previously-announced proposals to amend the Fair Work Act 2009 (Cth) (FW Act) provisions relating to union right of entry; the right to request flexible work arrangements; unpaid parental leave; and safe job transfers for pregnant employees. The Bill would also insert new provisions into the FW Act protecting penalty rates under modern awards; and implementing the proposed anti-bullying jurisdiction of the Fair Work Commission (FWC).

However, measures flagged by the Government to address employers’ concerns about greenfields agreements, and easier access to arbitration of intractable bargaining disputes,[4] were not included in the Amendment Bill. The Minister for Workplace Relations, Hon. Bill Shorten MP, has indicated that a further bill containing these measures will be introduced in the winter session of Parliament.

Union right of entry

The Amendment Bill includes several proposed changes to the right of entry provisions in Part 3-4 of the FW Act, primarily:

  • Section 492 would be amended to provide that, in relation to a permit-holder’s right of entry for purposes of holding discussions with employees, the discussions must be held in a room or area on the premises agreed with the occupier. However, if no such agreement can be reached, the default location will be the room or area in which employees ordinarily take their meal breaks, and which is provided by the occupier for that purpose.
  • The existing provision (section 492(1)(b)), requiring a permit-holder to comply with a reasonable request to take a particular route to reach a room or area on the premises in which a meeting with employees is to be held, would be replicated in new section 492A.
  • A new Division 7 would be inserted in Part 3-4, to deal with situations where permit-holders/unions have been unable to reach agreement on accommodation and transport arrangements to facilitate right of entry to workplaces in remote areas. For these purposes, a remote area is one where the only realistic means of access to the premises is by transport provided by the occupier, or where the only available accommodation is that provided by the occupier. Proposed sections 521A and 521C contain the obligations to be imposed on occupiers regarding accommodation arrangements, while sections 521B and 521D contain those relating to transport arrangements. Essentially, the occupier must enter into an accommodation or transport arrangement, where a request is made by a permit-holder within a reasonable period before access is required; and provision of the accommodation or transport would not cause the occupier undue inconvenience. Importantly, the occupier is not required to cover the cost of the accommodation or transport. Any costs incurred are recoverable from the permit-holder’s union.
  • Section 505, dealing with the FWC’s powers to resolve disputes about the operation of Part 3-4, would be amended to include disputes about where meetings with employees should be held on an occupier’s premises; and disputes about the occupier’s provision of accommodation or transport to facilitate right of entry in remote areas.
  • New section 505A would enable the FWC to deal with disputes about the frequency with which permit-holders from the same union seek to exercise entry rights for the purpose of holding discussions with employees under section 484. Intended to address the excessive use of entry rights by some permit-holders, this provision could result in orders being imposed, for example, to restrict, suspend or revoke a union official’s right of entry permit. However, no such orders could be issued unless the frequency of entry complained of “would require an unreasonable diversion of the occupier’s critical resources” (section 505A(4)).

Family-friendly measures

As announced last month, the Amendment Bill includes a number of measures to promote family-friendly workplace practices.[5]

Special maternity leave

The Amendment Bill would amend relevant provisions in Part 2-2, Division 5 of the FW Act, to ensure that any period of unpaid special maternity leave taken by an employee prior to giving birth (e.g. due to a pregnancy-related illness) does not reduce that employee’s entitlement to unpaid parental leave. Currently, a period of unpaid special maternity leave is offset against the relevant employee’s 12-month period of parental leave.

Parental leave

The Amendment Bill would:

  • expand the current entitlement of parents to take concurrent unpaid parental leave, from a maximum of 3 weeks to 8 weeks; and
  • provide parents with greater flexibility as to when such leave can be taken, i.e. separate periods of at least 2 weeks’ duration (or a shorter period agreed with the employer) could be taken at any time within 12 months of the birth or adoption of the child.

Right to request flexible working arrangements

Several changes are proposed in the Amendment Bill to section 65 of the FW Act, which enables parents of pre-school children or children under the age of 18 with a disability to make a request to their employer for flexible working arrangements.

The Bill would expand the categories of employees who may make such a request, to include employees who:

  • are parents of, or have caring responsibilities for, children of school age or younger;
  • are carers within the meaning of the Carer Recognition Act 2010 (Cth), e.g. carers of people with a disability or illness, or the elderly (other than those carrying out such caring responsibilities as an employee, contractor or volunteer);
  • have a disability;
  • are aged 55 or older; or
  • are experiencing family violence, or providing care or support to another member of the employee’s family/household who is experiencing family violence.

The Bill would also:

  • provide that the flexible working arrangements sought by an eligible employee under section 65 must be related to the specific circumstances of that employee;
  • clarify that one of the forms of flexibility that may be requested, by a parent returning to work after the birth or adoption of a child, is working on a part-time basis to assist the employee to care for the child; and
  • define the “reasonable business grounds” upon which an employer may refuse an employee’s request for flexible working arrangements,  through a non-exhaustive list, which includes:
    • the excessive cost to the employer of agreeing to the request;
    • the limited ability to reorganise the working arrangements of other employees;
    • the impracticality of the new arrangements (e.g. need to recruit replacement staff); and
    • the adverse impact on efficiency, productivity or customer service.

Transfer to a safe job

The Amendment Bill would amend section 81 of the FW Act, and insert new sections 81A and 82A, to extend the entitlement of a pregnant employee to transfer to a safe job.

Currently, only employees who have completed 12 months’ continuous service with their employer (and are therefore entitled to unpaid parental leave) have the right to transfer to a safe job during pregnancy.

The Amendment Bill would remove this limitation, as well as providing for situations where there is no appropriate safe job for an employee to be transferred to (i.e. the employee would be entitled to paid or unpaid no safe job leave, depending on whether the employee has an entitlement to unpaid parental leave).

Consultation over changes to rosters or working hours

The FW Act provisions requiring consultation clauses in modern awards and enterprise agreements would be altered, by provisions in the Amendment Bill requiring employers to consult with employees about changes to regular rosters or ordinary hours of work.

At present, consultation clauses in awards and agreements must provide for consultation by an employer with its employees about major workplace changes including proposals for restructuring or redundancies.

The Amendment Bill would insert new section 145A in the FW Act (relating to awards), and amend section 205 (relating to agreements), with the effect that consultation clauses in both awards and agreements must require an employer to:

  • consult with employees about changes to rosters or working hours;
  • provide employees with information about such changes;
  • invite employees’ views, including views about the impact of the proposed changes on their family or caring responsibilities; and
  • consider any views given by employees.

The amendments are intended to promote discussion and genuine consultation between employers and employees about these issues, instead of employers making sudden unilateral changes that adversely impact on the family life of employees. That said, the new consultation requirements are addressed at situations where changes are proposed to regular and systematic arrangements for working hours, rather than where employees have irregular or unpredictable hours to begin with.

Protection of penalty rates

The Amendment Bill would amend the “modern awards objective” in section 134 of the FW Act, by requiring the FWC – when exercising its functions in relation to modern awards – to take into account the need to provide additional remuneration for employees working:

  • overtime;
  • unsocial, irregular or unpredictable hours;
  • weekends or public holidays; or
  • shift-work.

These are all circumstances in which award provisions commonly require employers to pay penalty rates. This amendment can be seen as an effort to “shore up” the protection of award penalty rates, following (unsuccessful) attempts by employer organisations to reduce the penalty rates applicable under retail, hospitality and fast-food sector awards.[6]

FWC anti-bullying jurisdiction

The Amendment Bill would insert new Part 6-4B in the FW Act, enabling a worker who is bullied at work to apply to the FWC for an order to stop the bullying. The key features of this new anti-bullying jurisdiction of the FWC are as follows:

  • A worker who reasonably believes that he/she has been bullied at work may apply to the FWC for an order under section 789FF (section 789FC).
  • For these purposes, “worker” has the same meaning as in the Work Health and Safety Act 2011 (WHS Act). This means that a broad range of individuals could seek an order under section 789FF, including employees, contractors, subcontractors, outworkers, apprentices, trainees and work experience students (section 789FC(2)).
  • A worker will be considered to have been “bullied at work” if (section 789FD):
    • while working in a “constitutionally-covered business” (i.e. a constitutional corporation or Commonwealth authority as defined in section 12 of the FW Act, or a body incorporated in or operating principally in the ACT or NT);
    • the worker is the subject of unreasonable behaviour by another individual or group, and that behaviour creates a risk to health and safety – this reflects the definition of “bullying” recommended by the 2012 Report on Workplace Bullying: “We just want it to stop”, which encompasses repeated/persistent unreasonable behaviour such as threats, victimisation, humiliation or intimidation of an individual;
    • however, management action carried out in a reasonable manner will not constitute bullying – e.g. performance management, disciplinary action, allocation of work, and fair and constructive feedback by managers or supervisors.
  • The FWC would be required to start dealing with an application for an anti-bullying order within 14 days (section 789FE), e.g. by contacting the parties to inform itself of the circumstances involved, or by holding a conference or formal hearing.
  • Under section 789FF, the FWC will have powers to make various kinds of orders where it is satisfied that a worker has been bullied at work and there is a risk that this conduct will continue. The focus of these orders is meant to be preventative, and to resolve the matter so that normal working relationships can resume. Accordingly, the FWC may make any order it considers appropriate –other than orders for reinstatement or the payment of compensation (section 789FF(1)). Orders could apply not only to the employer, but also to co-workers or visitors to the workplace. The orders that could be made might include:
    • requiring an individual or group to stop specified behaviour;
    • monitoring compliance with an employer’s workplace bullying policy, or requiring a review of such a policy;
    • an order for the provision of information and training to workers on bullying issues.
  • When making an order under section 789FF, the FWC must have regard to the outcomes of any other investigation of the matter, or other procedures that are available to the worker to resolve grievances or disputes (section 789FF(2)). This would enable the FWC to take into account any action taken by the employer or by a regulator under the WHS Act in relation to the same matter.
  • Where proceedings have already been commenced seeking remedies under the WHS Act, a worker will not be precluded from seeking an order under section 789FF in respect of the same matter (section 789FH).
  • Any order made by the FWC under section 789FF would be enforceable in civil remedy proceedings under the FW Act (section 789FG).
  • Overall, it is intended that the FWC’s new anti-bullying jurisdiction will provide workers with an “early intervention” mechanism to resolve a bullying matter quickly and inexpensively. A fee will be charged for the making of an application, but it will likely be only minimal (along the lines of the unfair dismissal application fee, currently $64.20).

Where to next?

Most provisions of the Amendment Bill are intended to take effect on 1 January 2014. The exceptions are the new bullying jurisdiction of the FWC, and almost all of the family-friendly measures, which would take effect on a date to be proclaimed. The Government has previously indicated that it wants the new anti-bullying laws to be operative from 1 July 2013.

The Amendment Bill has been referred to the House of Representatives Standing Committee on Education and Employment for an inquiry and report, with submissions due to the Committee by 18 April 2013.[7]

However, given the limited number of sitting days remaining in the current Parliament, there is considerable doubt as to whether the Amendment Bill will be passed before the federal election is held on 14 September 2013.

Finally, two other bills were introduced on 21 March 2013:

  • the Public Interest Disclosure Bill 2013, which would provide protections to federal public service “whistleblowers” both under the proposed legislation and under the general protections provisions in Part 3-1 of the FW Act;
  • the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which would add three new protected attributes under the Sex Discrimination Act 1984 (Cth). These proposed provisions were included in the Government’s exposure draft Human Rights and Anti-Discrimination Bill 2012.[8] That Bill has now been referred back to the Attorney-General’s Department for further consultation, following concerns raised by business and other groups about the potential for proposed limitations on offensive comments to impinge on free speech (among other aspects of the Bill).