Australia: Federal Coalition Government Proposes Major Changes To The Fair Work Act

Last Updated: 1 April 2014
Article by Adam Salter

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 loading.

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 bargain.

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 settled.

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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Adam Salter
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