As noted above, the Federal Government has proposed several
major changes (largely employer-friendly) to the Fair Work Act
through the Fair Work Amendment Bill. In short, the major changes
include those listed below.
Greenfields Agreements: The Fair Work Amendment
Bill imposes a statutory obligation on unions and employers to
bargain in good faith when engaged in Greenfield Agreement
negotiations, just as they would be under s228 of the Fair Work Act
if they were negotiating an Enterprise Agreement in respect of
existing employees. It also gives employers the right to apply to
the FWC to have a proposed Greenfields Agreement approved if the
negotiating parties fail to reach agreement within three months,
and if the FWC is satisfied the proposed wages and conditions are
consistent with prevailing industry standards.
Union Rights of Entry: The Fair Work Amendment
Bill proposes the following key changes: restricting the
circumstances in which union officials can enter premises without
the employer's consent; giving the FWC more power to make
orders to resolve disputes between employers and unions over the
number and frequency of union officials' access; abolishing any
obligation to transport or accommodate trade union officials to
remote premises; allowing employers to reasonably require union
officials to use certain rooms or areas for their discussions,
instead of allowing the official to choose their workspace; and
updating FWC-issued entry permits to include a photograph of the
bearer to prevent their abuse by unauthorised persons.
Individual Flexibility Agreements (IFAs): The
Fair Work Amendment Bill proposes a significant change to minimum
term of IFAs, extending the minimum notice of termination of an IFA
by either party from four weeks to 13 weeks.
Annual Leave Loading: The Fair Work Amendment
Bill proposes to make it clear that annual leave paid out upon
termination will be exclusive of annual leave loading, unless an
industrial instrument expressly requires it to include annual leave
Meeting to Discuss Extensions of Unpaid Parental
Leave: In order to facilitate meaningful discussion and
consideration of requests for additional unpaid parental leave, the
Fair Work Amendment Bill proposes that if the employer intends to
reject the additional leave request, then the employer and employee
must at least meet to discuss the request before rejecting it.
Protection Action Ballot Orders: The Fair Work
Amendment Bill also contains provisions which aim to reverse the
decision of the Full Federal Court in JJ Richards & Sons
Pty Ltd v Fair Work Australia (2012) 201 FCR 297. The
amendments would mean that an application for a protected action
ballot order cannot be made until the employer's obligation to
provide employees with notice of their representational rights in
bargaining has actually been triggered. In essence, employees
cannot take protected industrial action (namely legal strikes
permitted by the Fair Work Act) to force an employer to agree to
Unfair Dismissal Applications: Following on
from concerns from employers about time wasted on frivolous claims
where the employee is refusing to comply with the timetable for the
proceedings, the Amendment Bill provides the FWC with the ability
to dismiss an unfair dismissal application without a hearing where
the application has no reasonable prospects of success or the
former employee has unreasonably failed to attend, comply with
directions or discontinue the application which has been
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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