Latest amendments to Fair Work Act pass through parliament

The latest amendments arising from the Fair Work Act Review passed through parliament earlier this month. The following article summarises the main changes and their effective date.

AMENDMENT

PARENTAL LEAVE

• Increase concurrent parental leave from 3 weeks to 8 weeks.
• Concurrent leave may be taken in separate periods of at least 2 weeks each occasion.
• An employee's entitlement to unpaid parental leave will not be reduced by any amount of unpaid special maternity leave taken by an eligible employee.

Effective date: On a date to be fixed on or before 29.12.13

FLEXIBLE WORKING ARRANGEMENTS

• Extends criteria of employees who may request flexible working arrangements to include parents of a child who is of school age, carers, employees with a disability, employees over 55 years of age, employees experiencing or, providing support for an immediate family member experiencing violence from a member of their family.
• Expressly provides an employee who is a parent or has responsibility for the care of a child, who is returning to work after taking a period of leave in connection with the birth or adoption of the child, has the ability to request a change in work arrangements to assist in caring for the child.
• Provides a non-exhaustive list of what may constitute reasonable business grounds upon which employers may refuse a request for flexible working arrangements.

Effective date: On a date to be fixed on or before 29.12.13

CONSULTATION REGARDING ROSTERS AND WORKING HOURS

•  Requires modern awards and consultation clauses in enterprise agreements to include a term that requires employers to genuinely consult employees regarding changes to employee's regular rosters or ordinary hours of work, particularly in relation to family and caring responsibilities.

Effective date: 1 January 2014

TRANSFER TO A SAFE JOB

•  Will amend the Fair Work Act to provide that a pregnant employee is entitled to be transferred to a safe job regardless of whether she is entitled to unpaid parental leave or not.

Effective date: On a date to be fixed on or before 29.12.13

ANTI-BULLYING MEASURES

• A worker (including an employee, sub-contractor, contractor, outworker, apprentice, trainee, a student gaining work experience or a volunteer) who reasonably believes that they have been bullied may apply to the FWC for an order that the bullying cease.
• A worker is bullied when an individual or a group of individuals repeatedly behaves unreasonably towards a worker or a group of workers which the work is a member, and the behaviour creates a risk to health and safety.
• The FWC must commence dealing with the application within 14 days of it being received.
• The FWC may, if satisfied that the worker has been bullied and there is a risk that the worker will continue to be bullied, make any order it considers appropriate (with the exception of ordering a monetary payment or fine, or reinstatement) to prevent the worker from being bullied at work.
• A person who contravenes an order by the FWC to prevent bullying may be subject to a civil penalty of up to $51,000 for a corporation or $10,200 for an individual.
• There is no prohibition in making an application both under the Fair Work Act and the relevant Work Health and Safety Act. If a worker suffers discrimination, adverse action or dismissal as a result of raising a bulling matter, they will continue to be entitled to pursue remedies under the Fair Work Act or the relevant Work Health and Safety Act.
• The FWC may also refer the matter to a work, health and safety regulator or another regulatory body.

Effective date: 1 January 2014

RIGHT OF ENTRY

• A permit holder will be required to hold interviews or discussions in rooms or areas of the premises agreed to with the occupier. If no agreement can be reached, then the interviews or discussions will occur in the lunchroom (or a place ordinarily provided for the taking of breaks). Currently a permit holder is required to comply with a reasonable request of the occupier to hold discussions/consultations in a particular area.
• The FWC will have capacity to deal with disputes about the frequency of permit holder's entry to hold discussions and if it considers the frequency of the permit holder' entry is causing an unreasonable diversion of the occupier's critical resources, make relevant orders, conciliate, make a recommendation or express an opinion.
• Special provisions apply to arrangements for accommodation and transport for permit holders to exercise their right of entry and ensure appropriate conduct of the permit holder in remote areas, in circumstances where agreement cannot be reached

Effective date: 1 January 2014

CONSENT ARBITRATION FOR GENERAL PROTECTIONS AND UNLAWFUL TERMINATION

• Where a conference has occurred in relation to a general protections application (in which an employee has been dismissed) or an unlawful termination application and a certificate has been issued, the parties will be able to agree by consent, within 14 days of the certificate being issued, to having the FWC deal with the matter by way of arbitration. Currently the FWC may only conciliate such matters.
• The FWC will be able to make orders for reinstatement, payment of compensation, payment for remuneration lost, maintenance of coninuity of employment, an order maintaining continuous service with the employer.
• A person who contravenes a general protections order by the FWC may be subject to a civil penalty of up to $51,000 for a corporation of $10,200 for an individual.

Effective date: 1 January 2014

Employers should review their current policies and practices to ensure that they comply, or will comply with these scheduled amendments. This may also include reviewing employment contracts, enterprise agreements, policies or other relevant instruments or documents.

If you would like more information about these amendments, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.