Australia: Looking forward, looking back: Lessons for employers in 2015 from the year that was

Last Updated: 18 December 2014
Article by Jonathon Hadley and Peta Tyquin
Focus: Developments in employee & industrial relations law in 2014/2015
Services: Employee & industrial relations
Industry Focus: Energy, resources & infrastructure, Financial services, Life sciences & healthcare, Insurance, Property

It is almost that time of year again... when business slows and everyone starts to head off on holidays.

As 2014 draws to a close, we outline some of the developments in the employment and industrial relations space that occurred in the last 12 months, and impending issues for 2015 of which employers should be aware.

Commencement of FWC's anti-bullying jurisdiction

The FWC's jurisdiction to make orders to prevent bullying in the workplace commenced on 1 January 2014. In the first six months since this jurisdiction commenced, the FWC received and processed 343 applications for anti-bullying orders.

While there were less applications than anticipated, the decisions of the FWC so far have confirmed that:

  • bullying conduct that took place prior to 1 January 2014 may be taken into consideration by the FWC when determining whether to make an anti-bullying order
  • anti-bullying orders will not be made where the risk of the bullying conduct continuing has been eliminated due to the dismissal or termination of the applicant's employment, and
  • confidentiality orders restricting the publication of respondent's names will not be ordered to simply avoid 'mere embarrassment, distress or damage' to the respondents.

Other amendments to the Fair Work Act 2009 (Cth)

In addition to anti-bullying amendments, the Fair Work Amendment Act 2013 (Cth) also introduced a number of changes that commenced in 2014. These included:

  • amendments to the modern awards objective relating to employees that work overtime, unsocial, irregular or unpredictable hours and who engage in other work that attracts penalty rates
  • requirements for modern awards and enterprise agreements to include provisions that require an employer to consult employees regarding a change to the employee's regular roster or ordinary hours of work
  • additional right of entry provisions, including provisions permitting interviews and discussions by permit holders to be held in worksite lunch rooms, requiring provision of accommodation and/or transport for permit holders and allowing the FWC to deal with disputes about the frequency of entry to hold discussions, and
  • amendments to allow the FWC to arbitrate a dismissal dispute in relation to general protections and unlawful termination claims.

Modern award and superannuation review

The first of January 2014 marked the fourth anniversary of the commencement of the Fair Work Act 2009 (Cth) and, therefore, the commencement of the first four yearly modern award review.

The legislation provides that the Fair Work Commission must review all of the 122 modern awards in consultation with any interested parties, including trade unions and employer associations. The modern awards were divided into four groups, to be dealt with sequentially in the four yearly review.

The FWC is currently in the process of finalising the awards in the first group, and commenced the review of awards in group two in November 2014. It is likely that the four yearly review will continue well into 2015, and possibly beyond the expected completion date of mid-2015.

Minimum wages and super contributions

The annual increase to the national minimum wage and modern award minimum wages took effect on 1 July 2014. The minimum wages in the modern awards were increased by 3%, with the national minimum wage rising by $18.70 per week to a weekly minimum wage of $640.90.

As expected, compulsory superannuation contributions also increased to 9.5% from 1 July 2014. However, due to the change of government in late 2013, the compulsory superannuation contributions will now remain at this level until 2021, increasing to 12% by 2025.

Transitional provisions

From the first full pay period on and after 1 July 2014, the transitional arrangements in modern awards that phased in the minimum wages, ceased to operate. Transitional arrangements were included in the modern awards to allow employers time after their commencement to adjust to changes to the minimum award entitlements.

Accident pay, redundancy entitlements (NAPSA, Division 2B) and district allowances will also cease on and from 31 December 2014.

Things to think about for 2015

With the beginning of a new calendar year, there are a number of important issues to consider in managing employees and the work environment within your business.

  1. Refresher training

Ensuring that employees are up-to-date with, and receive training on, work health and safety, bullying and discrimination law is an important part of protecting your business in the event of any safety incidents or claims for workers compensation, bullying or other adverse incidents in the workplace.

  1. Enterprise agreements

The beginning of the year is a great time to plan ahead if your business' enterprise agreement is close to reaching its nominal expiry date.

To avoid protected industrial action, it is important for employers to be proactive and prepared for bargaining in relation to any new enterprise agreement. In particular, employers should consider:

  • who will be covered by the new enterprise agreement?
  • will any unions be involved in bargaining for a new enterprise agreement?
  • what key terms and conditions should be included in the new enterprise agreement?
  1. New legislation

A number of bills that will impact employment and industrial relations law were introduced or considered by the Federal Parliament in 2014. The Fair Work Amendment Bill 2014 includes a number of amendments to the Fair Work Act 2009 (Cth), including in relation to the payment and accrual of annual leave, enterprise bargaining, flexibility terms in modern awards and enterprise agreements and right of entry provisions.

In addition, the Building and Construction Industry (Improving Productivity) Bill 2013 was considered by parliament early in 2014 and seeks to re-establish the Australian Building and Construction Commission to replace the existing Fair Work Building and Construction.

It is not clear when, or if, this legislation will be further considered by parliament. However, employers should ensure they stay up-to-date with any developments in relation to these bills, or any other workplace legislation, to ensure continued compliance with their obligations in the new year.

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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