Amendments to the Fair Work Act

The Fair Work Amendment Act 2013 (Amendments) received Royal Assent on 28 June 2013. This article provides an overview of some of the more important Amendments that will take effect from 1 January 2014 and which may be expected to affect a large number of employers.

Union right of entry

One of the major changes to the Fair Work Act 2009 (Cth) (FW Act) involves a change to the location of meetings held by unions. Under the current provisions, a union officer, when exercising a right of entry, must comply with a reasonable request by the employer to conduct interviews or hold discussions in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises.

From 1 January 2014, a union officer must hold any discussions or interviews in a room or in an area of the premises agreed with the employer. Where the parties cannot reach agreement, under the new provisions the interviews/discussions will take place in a room or area that is provided by the employer for employees to take their meal breaks and is ordinarily used for that purpose (i.e. the lunch room).

The new government may be expected to seek to ameliorate the effect of the changes to right of entry as foreshadowed when it was in opposition. This may include repealing the lunch room as the default area and limiting the right of entry where a modern award or enterprise agreement does not cover a particular union by demonstrating their interest.

Accommodation and transport arrangements for right of entry in remote areas

A new provision will commence which will deal with situations where a union, a union officer and employer have been unable to reach agreement on accommodation and transport arrangements to facilitate right of entry in remote areas.

A remote area is defined as an area where accommodation or transport is not readily available to the union officer unless the employer provides it.

Under the new provisions, the employer will be required to enter into an accommodation and/or transport arrangement with the union if the following conditions are satisfied:

• the provision of accommodation/transport to the union officer would not cause the employer undue inconvenience;
• the union officer or the relevant union requests the accommodation/transport for the purpose of exercising a right of entry;
• the request for transport/accommodation is made within a reasonable period before it is required; and
• the union officer and the relevant union have been unable to enter into an accommodation arrangement.

The employer is entitled to charge the permit holder for the cost of providing the transport/accommodation, however the FW Act makes clear that an employer cannot charge more than is necessary to cover the cost.

These Amendments also extend the scope of the Fair Work Commission’s (FWC) powers to deal with disputes about these issues. The FWC will have power to deal with disputes concerning whether accommodation/transport is reasonably available, whether it would cause undue inconvenience to the employer and whether the request to provide transport/accommodation was made within a reasonable period before required.

Consultation about changes to rosters or working hours

The Amendments also introduce additional mandatory consultation terms in modern awards and enterprise agreements. While an obligation to consult about workplace change already exists, there is now a requirement for modern awards and enterprise agreements to include a term that requires an employer to consult employees in relation to changes to employees’ regular rosters or ordinary hours of work. There is also a requirement to include a term allowing for representation of employees for the purpose of the consultation.

Under these Amendments, both modern awards and enterprise agreements must include a term that requires the employer:

• to provide information to the employees about the change;
• to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
• to consider any views given by the employees about the impact of the change.

Arbitration of general protections and unlawful termination claims

A dismissed employee bringing a general protections claim will have the option of having the dispute arbitrated by the FWC where the initial conference fails to resolve the dispute and where the employer agrees.

The FWC’s powers in relation to arbitration include making an order for reinstatement, payment of compensation and payment for lost remuneration.

Anti-bullying jurisdiction of the Fair Work Commission

Th e new anti-bullying jurisdiction of the FWC was explained in our recent eBulletin.

Key points for employers to note are:

• the FWC has jurisdiction to deal with workers who have been subjected to bullying;
• the definition of a worker is very broad and includes employees, contractors, trainees and volunteers;
• the FWC has broad power to “make any order it considers appropriate” to stop bullying. A breach of such an order would attract up to 60 penalty units;
• there is an obligation on the FWC to promptly deal with applications in relation to anti-bullying (within 14 days after an Application is made); and
• the FWC cannot order the payment of money.

The FWC’s new bullying jurisdiction is in addition to the existing provisions in federal and state work health and safety legislation.

The new Federal Coalition government is also expected to seek future changes to this new regime. When in opposition, it wanted workers to be encouraged to take reasonable steps to resolve their concerns, before elevating them to the FWC and proposed that the applicant be required to see preliminary help, advice or assistance from an independent regulator. If the worker’s concern remained unresolved, then he or she would be able to make an application to the FWC. In addition, it wanted the conduct of union officials towards manager, employers and workers to also be covered by the new jurisdiction.

AUTHORS: Amie Frydenberg – Senior Associate and Angela Woodward – Graduate, Lander & Rogers.

Lander & Rogers is a leading Australian law firm operating nationally from Melbourne and Sydney. Our Workplace Relations & Safety team advise on all aspects of employment, industrial relations, discrimination and health, safety and environment law. www.landers.com.au

This article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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