On 27 November 2015, the Fair Work Amendment Bill 2014 (the FWA Bill) came into effect.
The FWA Bill incorporates the following amendments to the Fair Work Act 2009 (Cth):
- greenfields bargaining: the greenfields bargaining provisions, which allow enterprise agreements to be made before employees are employed at a new enterprise, have been amended to:
- require an employer to agree to bargain with the relevant unions;
- enable employers to take a proposed greenfields agreement to the Fair Work Commission for approval, if agreement with the union cannot be reached within six months; and
- require the FWA to approve the agreement if it ensures employees are better off overall than if the relevant award applied and when compared to relevant industry standards.
These changes are intended to limit a union’s ability to frustrate or delay projects unless employers agree to their terms, provide certainty to encourage investors in major projects and help to ensure wages and conditions for such projects are economically sustainable;
- protected action ballot orders: the right to strike or take other protected industrial action in support of claims for an enterprise agreement has been amended to ensure that applications for a protected action ballot order may only be made when bargaining for a proposed agreement has commenced, either on the basis that the:
- employer has agreed to bargain; or
- majority of employees concerned vote to seek an enterprise agreement.
These changes seek to limit when an employer can be forced to the bargaining table; and
- unpaid parental leave: the right of employees to request an extension to the 12 month period of unpaid maternity leave has been amended to require the employer to give the employee a ‘reasonable opportunity’ to discuss the request prior to refusing the request. Employers will still need to respond to the request in writing on reasonable business grounds so will need to take into consideration any matters discussed in their response.
The industrial relations amendments are good news for employers as it will make new projects easier to implement and industrial action harder to take. Many of the amendments originally included in the FWA Bill were not supported by the Senate so were not passed, including those clarifying the position in relation to annual leave, individual flexibility agreements and transfer of business. Therefore, the law in relation to these issues is still uncertain. In addition, the proposed limitations on union rights of entry were not passed. The Government’s proposed reforms to the Australian Building and Construction Commission have also stalled in the Senate. The new Prime Minister, Malcolm Turnbull, has flagged his intention to create a more flexible industrial relations system without waging war with unions and a more consultative approach. As a result, we do not expect to see many significant further reforms in this area before the next election.