KEY POINTS

  • ƒThe New Year has brought about a number of important changes to employment law obligations. ƒƒ
  • Employers should be aware of these changes to ensure their businesses are compliant.

Bullying

On 1 January 2014, the Fair Work Commission’s new anti-bullying powers commenced.

Most employees, contractors or subcontractors (or their employees), labour hire employees, outworkers, apprentices, trainees, work experience students and volunteers can now seek orders from the Commission to stop workplace bullying.

While the Commission is not able to award compensation, it has very broad powers to stop unreasonable behaviour at work where it creates a risk to health and safety. It also has the capacity to examine the outcome of any investigations already undertaken by an employer into a worker’s complaints and what other procedures might be available (for example, in house dispute resolution systems) to address workplace bullying.

Recently released data shows that a significant number of bullying claims have already been filed and that more are expected.

The new laws are a timely reminder for employers to review their existing policies & procedures, implement a specific bullying policy & procedure if they do not already have one, and provide refresher training sessions for all staff.

Changes to Rosters

Modern awards and enterprise agreements must now include a clause requiring consultation with employees about changes to their roster or ordinary hours of work.

Employers who have employees covered by an award or enterprise agreement must now: ƒƒ

  • provide information to employees about changes to rosters or ordinary work hours
  • ƒƒinvite them to give their views about the changes
  • ƒconsider any views put forward by employees before changes are implemented.

The duty to consult is a genuine requirement and some employers have recently been criticised for only paying “lip service” to the obligation. However, significant flexibility can still be achieved through appropriately-worded employment contracts and agreements. Please contact us if you would like to discuss the likely impact of this change and how it can be managed at your workplace.

Parental Leave

Parental leave and related entitlements have been expanded so that:

  • ƒƒpregnant employees are entitled to be transferred to a safe job, irrespective of their length of service
  • ƒƒpregnant employees are entitled to “no safe job leave” if no safe job is available – with the leave paid for employees who will have 12 months of continuous service at the expected date of birth and unpaid otherwise
  • ƒƒthe amount of unpaid parental leave employee couples can take at the same time has increased from 3 weeks to 8 weeks, and can now be taken in separate periods ƒ special maternity leave will no longer be deducted from an employee’s entitlement to unpaid parental leave.

Flexible Work Arrangements

The categories of employees who can request flexible work arrangements have been expanded so that they now cover victims of domestic violence and their carers, parents of school age children, carers, employees with a disability and employees who are over 55 years old.

In addition, the National Employment Standards now include some guidance about what constitutes “reasonable business grounds” if an employer intends to refuse a request for flexibility.

There are now very few categories of employees who do not have a right to request flexible work arrangements. Employers should ensure their workplace policies reflect this right and that they have appropriate procedures in place for considering and responding to requests in a lawfully defensible manner.

Claims Procedure

The timeframes for employees to make unfair dismissal and general protections (or “adverse action”) claims have been standardised at 21 days.

The Fair Work Commission also has new powers to arbitrate general protections claims if both parties agree, rather than the claims being dealt with in the Federal Court or Federal Circuit Court.

This is a change that will have significant cost implications for many claims, and is an option that should be considered as part of an employer’s overall strategy for dealing with formal complaints.

Union Right of Entry

If an employer and union official (with a right of entry permit) are unable to agree on a suitable location for the union to hold discussions with employees, employers can now direct them to meet in any area where employees ordinary take their breaks from work.

Employers also have a new obligation to provide transport and accommodation to union officials visiting some work sites, especially in remote areas.

Importantly, the Fair Work Commission also now has greater powers to deal with disputes about excessive union visits.

Fair Work Information Statement

The Fair Work Information Statement has been updated. Employers must provide all new employees with a copy of the current Fair Work Information Statement before (or as soon as possible after) commencing employment. These changes are a timely reminder for employers to check their compliance with the new laws.