THE New Year is just around the corner and will bring with it a raft of important legislative changes affecting AREEA members. AREEA senior workplace policy adviser Lisa Matthews provides a comprehensive explanation of the new amendments and what they mean for you.
- Industrial Relations
- Modern Awards
- Enterprise Awards
- Building and Construction
- Skilled Migration
- Superannuation
- Discrimination and Harassment
- Workplace Health and Safety
Fair Work Amendment Act 2013 (remaining parts)
Parts of the Fair Work Amendment Act 2013 took effect on 1 July 2013, while the remainder will take effect on 1 January 2014.
For a full AREEA summary of the provisions of the Act and start dates, click here.
Provisions that will take effect on 1 January 2014 include:
Consent arbitration of some dismissal-related matters
These provisions amend the Fair Work Act to allow the Fair Work Commission to arbitrate dismissal-related general protections matters brought under s365 of the Fair Work Act, and unlawful termination matters brought under s773, as long as both parties consent.
If both parties do not consent to the Fair Work Commission arbitrating, any arbitration that occurs will happen as usual in the Federal Court or the Federal Circuit Court (formerly the Federal Magistrates Court).
Orders the commission could make in relation to such applications include reinstatement; payment of compensation; payment for lost remuneration; orders to maintain continuity of employment; and orders to maintain continuous service.
The amendments will also limit appeals of Fair Work Commission decisions in this area and allow costs orders to be made.
This may prove to be an attractive option for some employers as it is a lower cost jurisdiction. However, there are suggestions that such arbitrated outcomes would be subject to challenge given that the Fair Work Commission is a tribunal and not a court.
Consultation about changes to working hours
These provisions introduce new content requirements for modern awards and enterprise agreements.
From 1 January 2014, all modern awards must include a term requiring employers to genuinely consult with employees about changes to their regular rosters or ordinary hours of work.
Modern awards and enterprise agreements already must have a term requiring employers to consult over “major” workplace change after the decision has been made.
The new consultation requirements will be triggered before a decision is made to change working hours although will not be triggered for employees who have irregular, sporadic or unpredictable working hours. The new obligations will, however, apply to both permanent and casual workers.
Enterprise agreements will also be required to include the new consultation term. Employers and employees will still be able to negotiate consultation terms for enterprise agreements as long as they meet the new requirements.
‘Consultation’ requires the employer to give information to affected employees about the proposed change; invite them to give their views about the impact of the change on them, including on their family and caring responsibilities; and consider any views put forward by employees about the change.
Employees are entitled to be represented during consultations over such changes.
The changes will automatically apply to modern awards from 1 January 2014 and to enterprise agreements made after that date.
Penalty rates considerations in modern awards
This part of the Fair Work Amendment Act 2013 will commence on 1 January 2014.
It will add to the list of factors the Fair Work Commission needs to take into account under s134 to ensure that modern awards together with the National Employment Standards provide a fair and relevant minimum safety net of terms and conditions.
The new factors the tribunal will be required to take into account include the need to provide additional remuneration for employees working overtime; employees working unsocial, irregular or unpredictable hours; employees working on weekends or public holidays; or employees working shifts.
However, there is no strict requirement for the commission to include penalty rates in modern awards.
Anti-bullying
This part of the Fair Work Amendment Act 2013 will commence operating on 1 January 2014, introducing a new jurisdiction for the Fair Work Commission to deal with bullying complaints.
The changes will apply to a person who ‘reasonably believes’ they have been bullied at work, allowing them to apply to the Fair Work Commission for orders to stop the bullying. The commission must start dealing with such applications within 14 days.
If the commission is satisfied the worker has been bullied AND there is a risk they will continue to be bullied, it can make an order to stop the bullying. The commission is not allowed to order reinstatement, compensation or penalties associated with any initial applications.
The commission can, however, refer matters to a work health and safety regulator where appropriate.
The Act clarifies that ‘reasonable management action’ when carried out in a reasonable manner will not be considered bullying.
People bringing applications to the commission for orders to stop the bullying will not be prevented from pursuing matters under work health and safety or criminal laws as access to other remedies will not be blocked by applications to the Fair Work Commission.
To view the Fair Work Commission’s recently released draft case management model for how it will handle bullying claims, click here.
To view the FWC’s draft anti-bullying benchbook, click here.
Union access to workplaces (right of entry)
This part of the Fair Work Amendment Act 2013 will commence operating on 1 January 2014 to make lunch rooms or crib rooms the default meeting places for discussions between unions and employees unless the union and employer / occupier agree on an alternative location.
Also under the changes, where unions and occupiers are unable to agree on accommodation and transport arrangements for union access to remote sites, the employer / occupier will be required to facilitate access by providing transport and accommodation, for which it can then charge back the direct costs. These obligations are only intended to apply where there is no other means for unions to access and be accommodated at remote locations other than the means provided by an employer/occupier.
The Act also further empowers the Fair Work Commission to hear disputes about the frequency of union visits to the worksite to hold discussions. However, the commission can only make orders in relation to such disputes if the frequency of visits by officials from one union would require an ‘unreasonable diversion of the occupier’s critical resources’.
Four-yearly review of modern awards
The Fair Work Commission will from 1 January 2014 commence the required four-yearly review of modern awards. Modern awards first took effect on 1 January 2010 and are required to be comprehensively reviewed four years later.
As part of the review, the commission may vary, revoke or make new modern awards. It can also vary wages but only if it is satisfied that the variation is justified by work value reasons.
All modern awards must be reviewed, with the reviews undertaken by a Full Bench.
It is expected that as part of the four-yearly review there will be a number of significant “test cases”.
For more details about the four-yearly review of modern awards, click here.
Apprentices and trainees
Following the two-yearly review of modern awards, new pay rates and conditions for apprentices and trainees will take effect on 1 January 2014.
For more details about apprentice and trainee rates, click here.
Review of enterprise awards
Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 requires the Fair Work Commission to notify all persons covered by an enterprise instrument to apply to modernise it by 31 December 2013.
If no application is made to modernise or terminate an enterprise instrument (such as an enterprise award) by that date, the instrument will automatically terminate on 31 December 2013.
For more details click here.
Australian Jobs Act 2013 – Start date 28 December 2013
The vast majority of provisions of the Australian Jobs Act 2013 will come into effect on 28 December 2013, with the requirement for certain projects to embed an Australian Industry Opportunity Officer already having taken effect on 1 July 2013.
According to the former Labor government, the legislation is aimed at supporting Australian suppliers to increase their participation in large construction projects, such as resource construction projects.
The measures in the Act include requiring that all projects over $500 million in value undertake an Australian Industry Participation Plan. Australian Industry Participation Plans must outline how projects intend to engage with Australian suppliers, including the requirement to take Australian industry capabilities and Australian standards into account to try to prevent Australian suppliers from being ‘designed out’ of a project.
The Act also establishes the Australian Participation Authority to administer and monitor plan compliance.
The operation of the legislation will be reviewed within five years.
Separate to the legislation, in the “program guidelines” is a requirement that projects over $2 billion applying for a tariff concession must embed an Australian Industry Opportunity Officer within the company’s procurement team. That requirement came into effect on 1 July 2013 while the legislative provisions will take effect on 28 December 2013.
To view the legislation, click here.
Labour market testing requirement
The bulk of the Migration Amendment (Temporary Sponsored Visas) Act 2013 took effect on 1 July 2013.
The commencement of the labour market testing requirements was originally deferred until 1 January 2014 to allow sufficient time for implementation by employer sponsors.
The current federal government has brought forward that implementation date and the labour market testing requirement took effect on 23 November 2013 for all positions nominated after that date.
Labour market testing requires jobs to be advertised locally before being nominated as positions to be filled by skilled migrants from overseas.
For more information, click here.
New requirements for modern award terms
The bulk of the provisions of the Fair Work Amendment Act 2012 took effect on 1 January 2013.
Changes that will take effect on 1 January 2014 include introducing new requirements for modern award terms about default superannuation funds; and establishing an expert panel to assess default superannuation funds.
Changes to Tasmanian Anti-Discrimination Act
The Tasmanian Anti-Discrimination Amendment Act 2012 will take effect on 1 January 2014, amending the Tasmanian Anti-Discrimination Act 1998.
The legislation includes new protections against discrimination based on gender identity and “intersex” status (being neither wholly female nor wholly male or a combination of female and male or neither female nor male).
There are also new protections against conduct that offends, humiliates, intimidates, insults or ridicules on the basis of gender identity and intersex status.
Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth and includes transsexualism and transgenderism.
Under the legislation it is unlawful to engage in conduct that offends, humiliates, intimidates, insults or ridicules (ie bullies) in relation to an extra seven protected attributes on top of the existing seven.
Unlike the Fair Work Act’s anti-bullying jurisdiction which will also commence on 1 January 2014, the Tasmanian Anti-Discrimination Act allows bullying to be a one-off occurrence and still be actionable; it only deals with attribute-based bullying (not bullying generally); and it applies to a wider range of activities than just the workplace, including in education.
To view the bill, click here.
South Australian mine safety regulations
Work health and safety in the mining industry is regulated differently by each of the states and territories.
New South Wales, Queensland and Western Australia have separate mine safety legislation which they are currently reviewing with a view to making amendments.
In the Northern Territory and South Australia, mine safety regulations are to be included as Chapter 10 in their general Work Health & Safety Regulations.
In South Australia, the Mines Regulations chapter will take effect on 1 January 2014.
