Australia: Fair Work Act amendments passed; changes to right of entry, adverse action and bullying

Last Updated: 2 July 2013
Article by Robbie Walker

The Fair Work Amendment Bill 2013, which has now passed Parliament, brings in significant changes to right of entry provisions, the Fair Work Commission's new power to handle anti-bullying complaints, and a new consent arbitration process for claims of unlawful termination and adverse action claims, all of which will take effect on 1 January 2014.

Where can permit holders conduct interviews and hold discussions?

A permit holder will now be able to conduct interviews or hold discussions in worksite lunch rooms.

If a location for interviews or discussions can be agreed upon between the permit holder and occupier of the premises, then the interview or discussions must be held there.

However, if the location cannot be agreed upon, then the permit holder can conduct the interview or hold discussions in any room or area:

  • in which one or more persons to be interviewed or participate in discussions "ordinarily take meal or other breaks"; and
  • that is provided by the occupier for the purposes of these meal or other breaks.

Occupiers of premises will be in breach of the Fair Work Act 2009 (Cth) if they hinder or obstruct a permit holder from exercising these rights, exposing them to orders including pecuniary penalties.

Currently, under the Act, a permit holder must comply with any reasonable request of the occupier of premises to conduct such interviews or hold discussions in "a particular area" of the premises.

The current requirement for a permit holder to comply with any reasonable request by the occupier of premises to take a particular route to the location will remain in place.

The Fair Work Commission may deal with a dispute about the frequency with which a permit holder enters premises to hold discussions. However, the threshold for the Fair Work Commission to make any order after dealing with any such dispute is high and will only be made if the frequency of entry of the permit holder would "require an unreasonable diversion of the occupier's critical resources."

Provision of accommodation and transport to permit holders in remote areas

The Fair Work Act now includes detailed provisions to deal with circumstances in which permit holders or an organisation and occupiers have been unable to reach agreement on accommodation and transport in remote areas.

What is "remote"?

Determining what is "remote" will depend on the particular circumstances but is limited to those locations where the only realistic means for the permit holder to access the premises is by transport provided by the occupier, or where the only accommodation at the location (if it is required) is that provided by the occupier.

What are occupiers' accommodation and transport obligations?

An accommodation and transport arrangement is one where a permit holder is provided with accommodation and transport, respectively, for the purposes of assisting them to exercise their rights under the Act.

An occupier must enter into an accommodation and/or transport arrangement if a permit holder and the organisation for which he or she is an official have been unable to enter into an accommodation and/or transport arrangement by consent with the occupier and the following matters are satisfied:

  • to provide the accommodation and/or transport would not cause the occupier "undue inconvenience";
  • the permit holder or organisation request accommodation or transport to be provided to enable them to exercise their entry rights under the Act; and
  • the request is made within a reasonable time before the accommodation or transport is required.

An occupier may charge an organisation or permit holder a fee for accommodation or transport, but only one which is no more than necessary to cover the cost to the occupier of the accommodation and/or transport being provided.

The Fair Work Commission may deal with certain disputes about accommodation and transport arrangements.

Bullying complaints and the Fair Work Commission

The Federal Government has made good on its promise to give the Fair Work Commission powers to handle complaints of bullying.

One key change is that the Commission will not be able to impose a pecuniary penalty as a remedy (the Government had proposed a penalty of up to $33,000). Instead, the Commission will be able to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. Contravening that order will however attract a civil remedy, including a pecuniary penalty.

In making that order it must consider any other investigations into the matter, or any procedure available to the worker to resolve grievances or disputes. We suggested in February that this new procedure could encourage workers to bypass their employer's own grievance procedures and go straight to the Commission. Depending upon how it is applied this provision might deter employees from going straight to the Commission.

Consent arbitrations for adverse action claims and unlawful termination

Where parties consent, the Fair Work commission will now be able to arbitrate general protections dismissal disputes (ie. adverse action claims involving dismissal) and unlawful termination disputes.

These disputes will still be handled via attempts at conciliation. If all reasonable attempts to resolve the dispute by these means have been, or are likely to be, unsuccessful, the Commission will still be required to issue a certificate. Within 14 days of the certificate being issued, the employee can seek consent arbitration (if, of course, the employer agrees).

Further information

Employers or occupiers of premises should speak to their key Clayton Utz Workplace Relations and Safety contact if they have queries about the operation of the right of entry changes, including, if "undue inconvenience" would be caused by providing accommodation or transport to a permit holder in remote areas.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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