The Fair Work Amendment Bill 2014 has passed through the Lower House of parliament and is currently before the Senate. The Bill proposes numerous amendments to the Fair Work Act 2009, some of which will take effect immediately upon the Bill receiving Royal Assent, while others might come into effect up to six months later.

Unpaid parental leave

• Requiring employers, when refusing requests for an extra 12 months of unpaid parental leave (after an initial 12 months has been taken), to give the employee a “reasonable opportunity” to discuss the request. A phone or skype discussion would fulfil this obligation although a text or email would not.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Annual leave loading on termination

• Requiring the amount paid for untaken annual leave upon termination is at the employee’s base rate of pay rather than having leave loading applied where awards or agreements are silent on the issue of leave loading upon termination, even if it is paid on leave taken during employment.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Accrual of leave while on workers’ comp

• Removing the ability to accrue any leave for a period during which employees are absent from work and in receipt of workers’ compensation payments. This includes annual leave and other types of leave.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Individual flexibility arrangements (IFAs)

• Requiring mandatory flexibility clauses in both modern awards and enterprise agreements to allow flexibility in relation to all areas covered by the “model” flexibility clause. This would include clauses covering: arrangements about when work is performed; overtime rates; penalty rates; allowances; and leave loading if terms about those matters are included in awards or agreements.
• Requiring employers, upon entering into an IFA under a flexibility clause, to lodge a written statement explaining why the IFA meets their genuine needs and leaves them better off overall.
• Extending the notice period for terminating an IFA by either party from the current 28 days to 13 weeks.
• Confirming that non-monetary benefits can be taken into account when determining whether an IFA leaves an employee better off overall.
• Providing that an employer does not contravene a flexibility term if they “reasonably believe” they have complied with the term.
• If and when the Bill passes into law, these provisions would start within six months of the legislation receiving Royal Assent.

Greenfield agreement making

• Applying good faith bargaining principles to greenfield agreements for the first time.
• Enabling an employer to take a proposed agreement to the Fair Work Commission for approval after a notified three-month period without union approval.
• Applying an additional test for greenfield agreements approved by the Fair Work Commission without union consent – known as the “prevailing industry standards” test. This test would require agreements to meet the prevailing terms and conditions in the industry for equivalent work, taking into account geographical location.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Transfer of business

• Providing that a transferring employee’s old industrial instrument ceases to apply to them in their employment with a “related entity” of the employer if the transfer was at employees’ own initiative. This would be the case whether the old employer was a private sector company or a state public sector organisation that was considered a “related entity” of the new employer as defined by the Corporations Act 2001.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Protected action ballot orders

• Allowing applications for protected industrial action ballot orders to be made only after bargaining has commenced. Bargaining for this purpose will only commence if the employer agrees to and initiates bargaining or a union obtains a majority support determination from the FWC providing that the majority of employees at the enterprise want to bargain collectively with their employer.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

Union access to workplaces

• Removing entirely the 1 January 2014 requirements for employers / occupiers to facilitate union access to remote worksites by providing them with transport and accommodation.
• Removing the 1 January 2014 provisions giving unions “default” access to employee lunch rooms for discussion purposes in the absence of agreement between the parties on another location.
• Amending the basis of entry for discussion purposes according to whether the union is covered by an enterprise agreement onsite. If a union is covered by an enterprise agreement, they continue to enter sites based on the current Fair Work Act rules as they stand. If a union is not covered by an enterprise agreement onsite, unions can still enter to hold discussions but must be invited in by a member or prospective member, with a new system of “invitation certificates” coming into effect for when an invitation is in doubt.
• If and when the Bill passes into law, these provisions would start within six months of the legislation receiving Royal Assent.

Unfair dismissal hearings and conferences

• Removing the requirement for the Fair Work Commission to hold hearings into unfair dismissal claims in particular circumstances, such as where the applicant has failed to comply with FWC instructions.
• If and when the Bill passes into law, these provisions would start the day after Royal Assent.

To view the Bill and its progress through parliament, click here.

For AREEA’s submission to the Senate inquiry into the Bill, click here.