Round up on Fair Work changes starting 1 January 2014

The first day of January 2014 saw several new amendments under the Fair Work Act 2009 (Cth) come into effect. The following article briefly summarises some of those amendments and their implications for employers.

Fair Work Commission's anti-bullying powers commence

The new anti bullying laws commenced on 1 January 2014. The Fair Work Commission (the FWC) now has the power to make orders to stop bullying in the workplace. The FWC is required to commence dealing with bullying complaints by workers within 14 days of the complaint being made.

Employers should ensure they have effective workplace policies and procedures in place to deal with workplace bullying complaints.

National Workplace Lawyers has designed the Workplace Bullying Employer Assist Package to assist employers with the introduction of this law and to manage complaints, more information is available at this link.

For a brief overview of the anti-bullying complaint process, [click here].

Arbitration of general protections and unlawful termination claims

If the parties are unable to resolve a general protections or unlawful termination claim in conference before the FWC, an applicant may, where the parties agree, have the claim arbitrated by the FWC instead of having to refer the claim to Federal Court or Federal Circuit Court for to determination.

Employers will need to consider the pros and cons of consenting to an arbitration before the FWC. In some instances it may be in an employer's strategic interest to arbitrate a matter before the court.

Consultation on changes to rosters or working hours now an obligatory modern award and enterprise agreement term

As of 1 January 2014 modern awards and enterprise agreements must include a term requiring employers to consult with employees about a change to their regular roster or ordinary hours of work.  Unless an employee has irregular, sporadic or unpredictable working hours, employers are now required to:

• provide information to employees about changes to their regular roster or ordinary hours of work;
• invite employees to give their views about the impact of the change (including any impact on the employee's family or caring responsibilities); and
• consider any views provided by the employee in relation to the change.

Employers are also required to allow for representation of those employees for purposes of the consultation.

On 23 December 2013, a Full Bench of the FWC issued a decision which sets out the standard form of the consultation provision on changes to rosters or working hours to be inserted into modern awards and enterprise agreements.

Default superannuation funds must be MySuper funds other than for defined benefits funds and public sector employees

As of 1 January 2014, a modern award default superannuation fund can only be a fund that offers a MySuper product, unless the fund is a defined benefits fund or an exempt public sector superannuation scheme.

Similarly, enterprise agreements approved by the FWC from 1 January 2014 (including applications lodged for approval prior to 1 January 2014), can only refer to a default fund that offers a MySuper product, unless the fund is a defined benefits fund or an exempt public sector superannuation scheme.

On 30 December 2013, a Full Bench of the FWC issued a decision in which it determined the standard superannuation clauses to be inserted into modern awards arising out of the amendments. Please [click here] for a copy of that decision.    

For a list of modern awards that have already been varied in accordance with the Full Bench determination please [click here]. 

Employers should ensure that their default defined benefits fund offers an approved MySuper product by either contacting their superannuation fund or alternatively, [click here] for a list of the APRA approved default funds.

Changes to right of entry obligations

Prior right of entry provisions provided that a union official while exercising a right of entry, was required to comply with the employer's reasonable request to conduct interviews or hold discussions in a particular room or area and to take a particular route to reach that room or area. Often there were disputes as to what was "reasonable".

Now a union official must hold interviews or conduct discussions in a room or area as agreed with the employer.  If no agreement can be reached, the interview or discussion can be held in an area that the employer normally provides employees to take meal or other breaks - for instance a lunch room.  Further the route directed by the employer is not unreasonable simply because it is not the route the union official would have chosen.

Special provisions also apply for travel and accommodation requirements for union officials entering remote work areas.

The FWC also has capacity to deal with disputes regarding the frequency of unions seeking right of entry and the new travel and accommodation requirements for entering remote work areas.

4 year modern review process has commenced

On 15 November 2013, the FWC issued a preliminary outline of the process for its first four yearly review of modern awards which is to be undertaken in 2014 (the First Award Review). Interested parties were invited to comment on the proposed process by 16 December 2013. A number of parties have made submissions and have supported the proposed two stage process. The first or initial stage will identify and determine any legislative issues and the general scope of the First Award Review. The second stage will deal with award specific issues. 

The FWC will convene a conference at 10:30am on Wednesday 5 February 2014 to commence the initial stage of the First Award Review. At this conference interested parties should identify any variations they wish to pursue which affect multiple or all modern awards.

National Workplace Lawyers are involved in the First Award Review. If an employer or industry group has any concerns about their applicable award it may be possible to rectify these concerns as part of the First Award Review. We can assist in this regard.

Employers must now notify employees of an enterprise agreement approval application with the FWC

As of 1 January 2014, when an employer lodges an enterprise agreement for approval with the FWC, the employer must notify the employees to be covered by the agreement, that an application has been made to the Commission for approval. Notification may occur by the usual method of communicating with employees - for instance posting notices on employee notice boards or email.

If you would like more information about the new amendments or their implication in your workplace, 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.