Australia: Coalition Government's policy on Fair Work laws

Labour, Employment and Workplace Safety Alert
Last Updated: 25 September 2013
Article by Nick Ruskin and Katie A. Sweatman

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 Policy

The Coalition has proposed a two-stage reform process:

  1. 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.
  2. 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.

Area In Brief
Allow all items in an enterprise agreement or award to be varied under individual flexibility arrangements (IFAs)
  • 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 2012.
  • 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, plus superannuation.
  • 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 greater.
  • 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 substantively retained.
  • 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 equivalent).
  • Laws to also cover the conduct of union officials towards workers and employer.
Greenfields agreements
  • 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 bargaining.
  • 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 realistic.
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 organisations.
  • Reform of financial disclosure and reporting guidelines to align with Australian Securities Exchange (ASX) corporate governance rules.
  • 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 termination
    • expediting development of national long service leave standard
    • "better off overall test" to account for non-monetary benefits
    • ability for the FWC to strike out unfair dismissal applications for non-attendance.

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 diversity.

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