The Federal Government managed to push through changes to the
Fair Work Act (Act) earlier this month, after
striking a deal with Senate crossbenchers. The deal saw
crossbenchers approve limited changes proposed by the Fair Work
Act Amendment Bill (2014) (Bill). The
amendments will increase the power of employers to end protracted
negotiations with unions and limit the ability of unions to take
strike action before genuine bargaining has begun.
An impasse in the Senate had previously delayed passage of the
Bill, which was first introduced by the then Abbott Government in
February 2014. Many of the changes proposed in the Bill adopt
recommendations from the previous Labor Government's Fair Work
Though the Government failed to gain Senate support to pass a
majority of the changes proposed by the Bill, its passage through
the Senate represents the first major legislative victory for the
Government on workplace laws.
Significantly, the amendments will allow an employer to apply to
the Fair Work Commission (FWC) to have their
proposed greenfields agreement approved, if negotiations are not
finalised within six months. The six month timeframe extends that
contemplated by the original Bill which would have enabled an
employer to approach the FWC after a negotiating period of three
The new change undoubtedly gives employers more power to break
deadlock negotiations, and unions have expressed concern that the
ability to apply to the FWC will take away the incentive for
employers to engage in bargaining.
However, several safeguards have been introduced to protect the
process of agreement making. The new changes will make greenfields
agreements subject to the 'better off overall test' in the
Act, and will require that pay and conditions must comply with
'prevailing industry' standards. Further, both employers
and unions negotiating greenfields agreements will now be subject
to the obligation to bargain in good faith.
Right to strike
Employee's right to strike will also be curtailed under the
passed amendments. The changes passed by the Senate introduce a new
requirement for protected action ballot order applications to be
conditional on majority agreement from all employees. The change
reverses the decision of the Full Bench of Fair Work Australia in
JJ Richards to mean that, where an employer refuses to
bargain, the ability of employees to engage in industrial action
will be conditional on a majority of employees agreeing to that
Unpaid parental leave
Further amendments include the introduction of an obligation on
employers to give employees a reasonable opportunity to discuss
extending unpaid parental leave beyond the initial 12 month
While the obligation does not impose any further obligation on
the employer to accept the request, the amendment should encourage
employers to formalise workplace policies and principles which deal
with requests to extend unpaid parental leave and establishing
guidelines for refusing or accepting a request.
Other changes failed to pass
The Government failed to garner support to pass further
amendments proposed by the original Bill, In particular, the Senate
rejected rules which would curtail rights of entry. These changes
would have required that an employee request that a union official
attend the workplace, before being allowed on site.
Changes to increase flexibility in the application and content
of Individual Flexibility Agreements (IFAs) by extending the
conditions IFAs could cover, were also scrapped by the Senate.
The Bill will now return to a vote in the House of
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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