While industrial relations was not a key issue in the recent
2013 Federal election, it is inevitable that a change in government
will lead to changes to workplace laws.
The Coalition Government has stated that it will retain the
current Fair Work legislative framework, and will make necessary
changes to improve the laws.
Implementation of the Coalition's
The Coalition has proposed a two-stage reform process:
Changes set out in the Coalition's 'Policy to Improve
the Fair Work Laws', summarised below, proposed to be
legislated within three months of being elected to office.
Further changes as recommended by a Productivity Commission
review of the Fair Work Act 2009, to be carried out during
the Coalition's first term of government.
Policy to Improve the Fair Work Laws
Please note that the following summary outlines amendments to
Fair Work legislation proposed by the Coalition as part of its
election policies, and does not reflect any actual changes
currently in effect.
Allow all items in an enterprise agreement or
award to be varied under individual flexibility arrangements
Employers and individual employees to be able to enter into an
IFA to vary how terms and conditions in an award or enterprise
agreement apply to that employee.
Matters for agreement in an IFA cannot be restricted by terms
of an enterprise agreement.
Subject to the "better off overall test".
Notice period to terminate an IFA to be 13 weeks.
No return of Australian Workplace Agreements (AWAs).
Re-establishment of the Australian Building and
Construction Commission (ABCC)
Bring back a tougher regulator in the construction industry by
replacement of Fair Work Building and Construction and reversal of
changes to Building and Construction Industry Improvement Act
2005 made by the Fair Work (Building Industry) Act
ABCC will administer a national code and guidelines governing
industrial relations arrangements for Government projects.
Paid parental leave
Mothers that give birth after 1 July 2015 will be provided with
26 weeks of paid parental leave, at full replacement wage (up to
AUD150,000) or the national minimum wage, whichever is greater,
If the mother's partner is the baby's primary carer,
they will receive the payment at the mother's salary. If the
partner's annual salary is less than the mother's salary,
they will receive the paid parental leave payment calculated at
their salary or the national minimum wage, whichever is
Paid directly to the employee by the Government (ie not
administered by employers).
Funded by way of a 1.5% levy on corporations with taxable
incomes over AUD5 million.
Contraction of right of entry laws
Limit union's entry into a workplace so that the union must
have members, be covered by an award or enterprise agreement, or
demonstrate a prior lawful representative role.
Reversal of recent amendments to right of entry provisions that
enables unions to hold interviews and discussions with employees in
a lunchroom if a permit holder and occupier cannot otherwise agree
on the location.
Filtering of bullying complaints
Amendments to bullying introduced by Labor Government
Prior to making complaint to Fair Work Commission (FWC), a
worker must have first sought help/assistance/advice from an
independent regulatory agency (likely WorkSafe or interstate
Laws to also cover the conduct of union officials towards
workers and employer.
Only need to negotiate with a union that will cover a majority
of the workers to be employed on the greenfield site.
If negotiations for a greenfield agreement are not completed
within three months of commencement, the FWC will have powers to
make and approve the agreement, so long as the proposed agreement
provides fair working conditions that are consistent with
prevailing industry standards.
Protected industrial action as a last resort
An application for a protected action ballot may only be
granted by the FWC where, as a pre-condition, the employer has
agreed to bargain or a majority of employees has voted in favour of
Industrial action will only be protected where (subject to
meeting other pre-requisite requirements) the FWC is satisfied that
there has been genuine and meaningful talks between workers and the
business, and that the claims made by both parties are sensible and
Registered organisations and officials subject to
same reporting rules and penalties as companies and directors
Imposition of criminal penalties, including fines, for failure
to comply with reporting rules and other obligations of registered
Reform of financial disclosure and reporting guidelines to
align with Australian Securities Exchange (ASX) corporate
Establishment of the Registered Organisations Commission to
ensure new rules and obligations strictly adhered to.
Separate appeals jurisdiction
Active consideration to be given to creating an independent
appeal jurisdiction of the FWC.
Fair Work Review Panel report recommendations
Further recommendations arising out of the Fair Work Review
Panel report not already reflected in amendments to the Fair
Work Act 2009 to be implemented, including:
clarification around interaction between workers'
compensation and annual leave
clarification around payment of annual leave loading on
expediting development of national long service leave
"better off overall test" to account for non-monetary
ability for the FWC to strike out unfair dismissal applications
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
K&L Gates has been awarded a 2012 EOWA Employer of Choice
for Women citation acknowledging our commitment to workplace
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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