Although the Coalition Government elected today promises
workplace reform that is more evolution than revolution, employers
will need to carefully consider its effect on their operations in
the next 12-18 months.
Its policy retains the framework of the existing Fair Work Act,
which it said has "many positive aspects", and amends it
rather than starting again from scratch. In the vast majority of
cases, employers need not take any immediate action. Any change
will not be passed until much later this year at the earliest.
No restrictions on individual flexibility
The Coalition Government will not permit individual flexibility
arrangements to be restricted in an enterprise agreement.
The "Better Off Overall Test" will be retained for
There is no plan to reintroduce Australian Workplace
Workplace bullying laws to be retained, but slightly
The Coalition supports and will retain the amendments made by
the previous Government to the Fair Work Act to include workplace
They have, however, foreshadowed two amendments:
workers making an application to the Fair Work Commission in
respect of workplace bullying will need to show they have first
sought help from an independent regulatory agency such as a state
work health and safety body; and
the scope of the workplace bullying provisions will be expanded
to include the conduct of union officials towards workers and
Greenfield agreements – new good faith bargaining
The Coalition Government will introduce good faith bargaining
requirements for the negotiation of greenfield agreements. These
negotiations and the greenfield agreement will need to be completed
within three months; if not, the Fair Work Commission will have the
power to make and approve the agreement as long as it provides fair
working conditions that are consistent with prevailing industry
Australian Building and Construction Commission to be
The Coalition Government will re-establish the Australian
Building and Construction Commission, replacing Fair Work Building
and Construction. It will administer a national code and guidelines
governing industrial relations arrangements for government
A new threshold for protected action
The Coalition's policy is that before "protected
action" can occur the Fair Work Commission will need to be
satisfied that there has been genuine and meaningful talks between
the employer and employees and that the claims made by both parties
are "sensible and realistic".
clarifying the circumstances when annual leave loading is
payable on termination;
amending the "Better Offer Overall Test" to include
consideration of non-monetary benefits; and
requiring an employer and employee to hold a meeting to discuss
a request for extended unpaid parental leave, unless the employer
has already agreed to the request.
Paid Parental Leave Scheme
While the Coalition has promised to introduce its own Paid
Parental Leave Scheme, the full implications of this, and how it
will interact with pre-existing employee entitlements, are not yet
Right of entry
The Coalition will reverse the right of entry amendments passed
in June this year, and seek to limit union entry for discussion
a union covered by an enterprise agreement at that workplace;
a union as a bargaining representative seeking to make an
agreement in that workplace where there is evidence members have
requested their presence.
For award-covered workplaces or non-union covered enterprise
agreements, entry will be permitted only where a union can
demonstrate it has, or had a representative role in that workplace
and it has members who have requested their presence.
The coalition will give the Fair Work Commission powers to
resolve disputes about the frequency of unions' workplace
The proposed changes will not affect union rights to enter to
investigate OHS breaches or represent a member in a dispute over an
award or agreement.
As always, the Clayton Utz Workplace Relations, Employment and
Safety team will keep you informed of developments as the
Coalition's policies are implemented in this vital area.
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.
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