Australia: Government commences Fair Work Act reform

On 27 February 2014, the Government introduced the Fair Work Amendment Bill 2014 (Amendment Bill) into federal parliament.

This In Brief summarises the main changes to the FW Act that will occur if the Bill is passed in its present form.


The Amendment Bill proposes a number of changes to the greenfields agreement process intended to prevent employers from being compelled to agree to inflated wages and conditions and employment preference in order to avoid delays to a project. These changes will improve the certainty around major developments and in particular major infrastructure projects that are critical to improved productivity and job creation. The changes are:

  • the extension of the good faith bargaining requirements to single-enterprise greenfields agreements;
  • provision for an employer to apply to the Fair Work Commission (FWC) for an "agreement" to be approved where the parties are unable to reach agreement in a reasonable period following a three month negotiation period notified by the employer; and
  • an approval requirement that the FWC be satisfied that an "agreement" approved by the FWC in the circumstances above provides "for pay and conditions that are consistent with the prevailing pay and conditions with the relevant industry for equivalent work".


The Amendment Bill proposes to wind back recent changes and further amend the right of entry provisions in the FW Act by:

  • abolishing the obligations on an employer or occupier to organise transport and accommodation arrangements to support the exercise of entry rights by permit holders at work sites in remote areas;
  • restoring former rules relating to the default location of interviews and discussions, meaning that permit holders must once again comply with reasonable requests by employers to conduct interviews or hold discussions in particular rooms or areas of a work site and to take particular routes to reach those areas;
  • broadening the power of the FWC to deal with disputes including those concerning the frequency of visits by permit holders to work sites for discussion purposes (the FWC would no longer be limited to making an order where satisfied that the frequency of entry would require "an unreasonable diversion of the occupier's critical resources"); and
  • limiting the permit-holder's entry rights to hold discussions to premises where:
    • the permit-holder's organisation is covered by an enterprise agreement applying to work performed on the premises; or
    • the permit holder is invited by a person who works on the premises and is a member or prospective member of the permit holder's organisation (the FWC will have power to issue an "invitation certificate").


In order to avoid applications having to be made to the FWC to avoid the transfer of industrial instruments between associated entities where an employee seeks out an opportunity in an associated entity, the Amendment Bill proposes that there will not be a transfer of business where:

  • an employee becomes employed by an associated entity of their old employer; and
  • the employee sought out that opportunity on their own initiative prior to the termination of their employment with the old employer.


Amendments have also been proposed to improve the utility of individual flexibility arrangements by:

  • requiring enterprise flexibility terms to permit individual flexibility about all five minimum matters listed in the model flexibility term; namely arrangements about when work is performed, overtime rates, penalty rates, allowances and leave loading;
  • allowing for unilateral termination only upon 13 weeks' notice (rather than the current 28 days' notice);
  • including a legislative note to the effect that, in considering whether an employee is better off overall under the individual flexibility arrangement, benefits other than a payment of money may be taken into account; and
  • excusing an employer from contravening a flexibility term if the employer reasonably believed that the requirements of the term had been complied with.

However, the additional certainty and flexibility for businesses comes with an additional administrative burden. Employees entering into an individual flexibility arrangement will now be required to give a written statement that indicates why they believe an individual flexibility arrangement under a modern award or enterprise agreement meets their needs and leaves them better off.

The amendments will prevent the practice of making enterprise agreements with minimal capacity for individual flexibility arrangements because new enterprise agreements made after the commencement of the relevant provisions would be required to include a flexibility term that allows for variation of all five minimum matters..


The Amendment Bill proposes that an application for a protected action ballot order will not be able to made until the employer is obliged to give employees notice of representational rights in bargaining (reversing the effect of the decision of the Full Federal Court in JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297).


The National Employment Standards (NES) currently require annual leave paid out on termination of employment to be paid at the rate that would have been payable if the employee had taken the period of leave. This caused confusion in relation to annual leave loading, which some modern awards required to be paid during a period of leave but excluded from being paid on termination of employment (apparently in breach of the NES provision).

The Amendment Bill proposes that the NES will require annual leave on termination of employment to be paid out at the base rate of pay.

Amendments will also make clear that annual leave entitlements will not accrue during a period in which an employee is absent from work and in receipt of workers' compensation entitlements, even if this is permitted under the relevant State statute. This will place all national system employees on workers' compensation in the same position in respect of leave accrual.

It is proposed that employers will be prohibited from refusing requests for extended unpaid parental leave until they have given the employee a reasonable opportunity to discuss the request. The Explanatory Memorandum anticipates that such discussions will be held in person or over the phone but not by email or text message.


The Amendment Bill proposes a more streamlined process in relation to the dismissal of unfair dismissal applications by the FWC. The FWC will no longer be required to hold a hearing or conduct a conference when considering whether to dismiss an unfair dismissal application under section 399A (non-compliance with directions etc) or section 587 (no reasonable prospects of success etc).

However the FWC must first invite relevant parties to provide further information that relates to whether the FWC should exercise its power to dismiss and consider that information before exercising the power.


The Explanatory Memorandum anticipates that there will be a Senate inquiry into the Amendment Bill and that the proposed changes will be reviewed as part of the "Productivity Commission review of the workplace relations framework" that is scheduled to commence this year.

The Bill is unlikely to be passed until after 30 June 2014, when the composition of the Senate changes and the Government has better prospects of securing passage of the legislation.

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.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.