Long awaited changes to Fair Work Act and further Bill

On 11 November 2015 a significantly reduced version of the original Fair Work Amendment Bill (Cth) 2014 was passed by Federal Parliament, almost two years after it was introduced.

Amendments

The following amendments were made to the Fair Work Act 2009 (Cth).

Request to extend unpaid parental leave

Employers are now required to give employees a reasonable opportunity to discuss any request to extend their unpaid parental leave before refusing such a request.

Greenfields enterprise agreements

Employee organisations (i.e. unions) can only be bargaining representatives for a greenfields enterprise agreement if the employer agrees to bargain with them. This means that an employer can refuse to bargain with a particular union. However, in practice, a greenfields agreement must be negotiated with at least one union.

If after six months of negotiations an employer cannot reach agreement with the relevant union/s about a greenfields agreement, it can now apply to the Fair Work Commission for approval of the agreement. This allows an employer to avoid protracted negotiations with the union.

Protected industrial action

Employees are now prevented from taking protected industrial action until after bargaining for a new enterprise agreement has commenced. This prevents employees from taking industrial action to attempt to pressure the employer to agree to bargain.

This amendment reverses the position in the Full Federal Court decision of J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53), which allowed protected industrial action prior to the commencement of bargaining for a new agreement.

Amendments not passed

After much debate there were many amendments that were removed from the Bill before it was passed, including the following.

Annual leave loading on termination of employment

The National Employment Standards were to be amended to resolve the inconstancy between the Fair Work Act and many modern awards in relation to payment of annual leave loading upon termination of employment. It was proposed that on termination of employment the employee would be entitled to payment of any untaken annual leave at their base rate of pay. This meant that the employee would not be entitled to annual leave loading on termination of employment unless an applicable industrial instrument provided for it.

As this amendment was not passed, the position in Centennial Northern Mining Services Pty Ltd v CFMEU [2015] FCAFC 100 remains. That is, if an employee receives annual leave loading during employment, they are also entitled to loading on any untaken annual leave on termination of employment, despite a contrary provision in any industrial instrument.

Individual flexibility agreement

There were various proposed amendments to the requirements for individual flexibility agreements in awards and enterprise agreements, including a statement from the employee about how the agreement meets their genuine needs and results in them being better off overall and providing for 13 weeks’ notice of termination.

Transfer of business – exclusion

It was proposed to exclude the transfer of business provisions in relation to transferring instruments where an employee transfers to an associated entity at their own initiative.

Union right of entry limitations

The proposed amendments reversed many of the previous Labour Government provisions about union right of entry, including requiring the employer to facilitate transport and accommodation arrangements in remote locations and making the lunchroom the default location for discussions.

Dismissing unfair dismissal applications without hearing

The proposed amendments gave the Fair Work Commission the ability to dismiss unfair dismissal applications without holding a hearing where the Commission was satisfied that the applicant had failed to attend a conference or hearing, comply with directions or discontinue an application after a settlement agreement or if the application was frivolous, vexatious or had no prospects of success.

Leave while receiving workers’ compensation

The proposed amendments provided that an employee could not take or accrue any type of leave while they were absent from work and receiving workers’ compensation payments.

Round two – Fair Work Amendment (Remaining 2014 Measures) Bill 2015

On 3 December 2015 Federal Parliament introduced a new Bill to amend the Fair Work Act containing the above provisions that were removed from the 2014 Bill.

We will keep you updated on the progression of the 2015 Bill.

This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – December 2015. Click here to download the full newsletter.