The Fair Work Amendment Bill 2014 (the Bill) is
currently before the Senate. The Bill proposes a number of changes
to the Fair Work Act 2009 (Cth) (FW Act) and if passed,
will represent the first significant amendments made by the
Government since the election in September 2013.
We briefly discuss a few of these proposed changes.
Changes to the making of greenfields agreements
Good faith bargaining requirements under the FW Act do not
currently apply to the making of a greenfields agreement. This has
caused difficulty for employers in the past as unions often do not
agree to reasonable terms.
The proposed changes will see good faith bargaining rules
enacted to apply to the negotiation of greenfields agreements. The
changes will also allow for a three month negotiation period
between the employer and a union. If the employer and the union
cannot reach an agreement in that time, the employer can apply to
the Fair Work Commission (FWC) for the agreement to be approved
even when no agreement has been reached.
Repeal of right of entry provisions introduced in the Fair
Work Amendment Act 2013
In 2013, the right of entry provisions under the FW Act were
expanded to allow a union official to enter a workplace to hold
discussions with employees if it was entitled to represent the
industrial interests of relevant employees at the workplace.
If passed, the Bill proposes to repeal the expanded right of
entry provisions and only allow right of entry where the union is
bound by an award or enterprise agreement that covers a workplace
where they have members, or employees eligible to be their
Clarification on the payment of annual leave loading upon
termination of employment
There has been confusion as to whether annual leave loading is
payable on accrued annual leave paid out on termination of
employment. Some modern awards specifically deal with this issue
and some do not.
It is proposed in the Bill that annual leave loading only be
paid out on termination in circumstances where it is explicitly
required under the modern award, industrial instrument (such as an
enterprise agreement), or it has been specified in the
employee's contract of employment.
Changes to the transfer of business provisions
Currently under the FW Act, the default position is that where a
transfer of business has been triggered, the enterprise agreement
(or other 'transferable instrument') of the old employer
becomes binding on the new employer. Employers are required to seek
an order from the FWC to alter that position.
The Bill proposes to change the current default position in
circumstances where employees, at their own initiative, seek
employment with an associated entity of their employer. In these
circumstances, the employee will be subject to the terms and
conditions of employment provided by the new employer, not the old
Some other changes proposed by the Bill are:
greater powers for the FWC to dismiss an unfair dismissal
application in certain circumstances;
wider minimum requirements for flexibility terms in enterprise
providing that employers must not refuse a request for extended
unpaid parental leave unless the employee has been given a
reasonable opportunity to discuss the request; and
clarification as to the requirements of meeting the 'better
off overall test' when entering into individual flexibility
agreements and expanded notice of termination of those
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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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