21 Dec December Newsletter: Fair Work Act Amendments Commence, with more changes to come

Fair Work Act Amendments Commence, with more changes to come

Fair Work Amendment Act 2015

The Fair Work Amendment Act 2015 (Cth) (“Amendment Act”) has commenced, making various amendments to the Fair Work Act 2009 (Cth) (“FW Act”).  Originally introduced as a Bill in February 2014 (“2014 Bill”), it was heralded to bring many changes to the FW Act.  However, the Amendment Act as passed differs significantly from the 2014 Bill originally introduced, limiting the amendments to parental leave, greenfields agreements, protected action ballot orders and unclaimed money.

Parental Leave

Under the FW Act, an employee who takes unpaid parental leave can request an extension beyond the 12 months available to them.  Amendments to section 76 of the FW Act now make it clear that an employer cannot refuse a request for an extension unless they have “given the employee a reasonable opportunity to discuss the request.”

Greenfields Agreements

The Amendment Act makes a number of amendments to the provisions regulating greenfields agreements, including the following:

1. The FW Act now defines bargaining representatives in relation to single-enterprise greenfields agreements. The employer must agree to bargain with an employee organisation for it to be a bargaining representative.  The effect of the change is that all provisions relating to existing bargaining representatives will apply to bargaining representatives for single-enterprise greenfields agreements, including good faith bargaining requirements.
2. The FW Act now provides for a “notification period” of six months for single-enterprise greenfields agreements. The notification period commences when the employer gives notice to each bargaining representative.  If agreement is not reached in the six month period, an employer can seek approval from the Fair Work Commission (“FWC”) to approve the agreement, provided it complies with the procedural requirements under the FW Act.  The good faith bargaining obligations also cease to apply once the notification period has ended;
3. Amendments to section 187 of the FW Act now require the FWC to be satisfied that the single-enterprise greenfields agreement, on an overall basis, “provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work”, which may include reference to relevant geographic areas.
4. When a single-enterprise greenfields agreement is approved, the FWC is required to note that the agreement will cover all employee organisations that were bargaining representatives. This is in contrast to a regular single-enterprise agreement which requires employee organisations to give notice that they wish to be covered by an enterprise agreement.

Protected Action Ballot Orders

Amendments to provisions relating to protected action ballot orders mean that such orders can now only be sought after:

1. an employer agrees to bargain, or initiates bargaining for an agreement; or
2. a majority support determination, scope order or low-paid authorisation comes into operation.

According to the Explanatory Memorandum to the 2014 Bill, this change reflects recommendations from the Fair Work Review Panel.  These changes will prevent Unions from seeking to take protected industrial action prior to the commencement of bargaining (or obtaining a majority support determination, scope order or low-paid authorisation) for an enterprise agreement.

Unclaimed Money

Under the FW Act, where an employer is required to pay money to a former employee, but cannot locate them, they are able to discharge their obligations by paying the money to the Commonwealth.  The amendments provide that where such an amount paid is more than $100.00, and has been held by the Commonwealth for more than six months, when the amount is paid out, the Fair Work Ombudsman (on behalf of the Commonwealth) must also pay interest.  The amendments give the Minister the power to make legislative instruments determining the interest rates payable.  The policy for this, according to the Explanatory Memorandum to the 2014 Bill, is so that the “real value of that money is maintained over time”.

Commencement

Most of the amendments commenced on 27 November 2015, except those relating to unclaimed money, which will commence either on a day to be fixed by proclamation or six months after royal assent (26 November 2015), whichever is earlier.

Fair Work Amendment (Remaining 2014 Measures) Bill 2015 (“Remaining Measures Bill”)

Meanwhile, the Federal Government introduced new legislation on Thursday 3 December 2015 further amending the FW Act.  The Remaining Measures Bill contains the amendments from the 2014 Bill that were not included in the Amendment Act, including amendments relating to annual leave, workers’ compensation, individual flexibility arrangements, transfer of business, right of entry and FWC hearings and conferences.

Assistant Minister for Science, Karen Andrews, who introduced the Remaining Measures Bill, said in her second reading speech that the measures included in the Amendment Act (see above) were passed following “constructive engagement between the government and crossbench senators,” whilst the Remaining Measures Bill was introduced to “allow for the continuation of constructive discussions with crossbench senators”.  The Remaining Measures Bill has been referred to the Senate Education and Employment Legislation Committee with a report due on 4 February 2016.  The closing date for individuals and organisations to make submissions on the Remaining Measures Bill is 22 December 2015.

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.