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 Review.
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.
Greenfields agreements
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 months.
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 action.
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 period.
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 Representatives.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
