First and Second Wave of Changes to the Fair Work System
Due to the magnitude of the changes to Australia’s industrial landscape after Labor’s repeal of the Work Choices regime, the Government committed to a review of the Fair Work system after two years of operation.
The recently conducted review has determined that the aims and objectives of the Fair Work Act 2009 (Cth) (the Act) and the Fair Work Commission (previously Fair Work Australia) (the Commission) are substantially being met.
The Fair Work Act review was conducted by a panel of eminent Australians and considered submissions by over 250 stakeholders. In August 2012 the panel released its recommendations, and since then the Government has implemented its first wave of changes and has introduced its second wave of changes into Parliament.
Changes already in operation- The First Wave
The following is an outline of some of the main changes that came into effect as of 1 January 2013:
- increasing the time in which to bring a claim in Unfair Dismissal to 21 days (previously 14 days);
- decreasing the time in which to bring a claim under the General Protections to 21 days (previously 60 days);
- in Unfair Dismissal matters, further powers for the Commission to order costs against a party where that party causes the other party to incur costs by an unreasonable act or omission;
- changing the name of Fair Work Australia to the Fair Work Commission; and
- changes to how enterprise bargaining agreements may be made.
The changes in time limits benefit employers because employees will now have to elect whether to bring a claim in Unfair Dismissal or under the General Protections, rather than being able to attempt a claim under the General Protections after first having unsuccessfully attempted an Unfair Dismissal claim.
Changes currently before Parliament- The Second Wave
The Fair Work Amendment Bill 2013 (Cth) has been introduced into Parliament however given the volatile nature of the make-up of the current Parliament, nothing is certain. The proposed amendments are not law yet, but nonetheless it is important for employers to be aware of the proposed changes.
The following is an outline of some of the main changes to the Act that are currently before Parliament:
New Bullying Jurisdiction
The Commission will, for the first time, be able to make an order to stop bullying upon receiving an application from a worker.
A worker will not only mean an employee, but will also include (among other things) contractors, apprentices and work experience students. This is identical to the definition of worker in the Work Health and Safety Act 2011 (Qld).
A worker will be considered to be bullied at work if:
…while the worker is at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.
Importantly for employers, reasonable management action carried out in a reasonable manner is not bullying.
The Commission must deal with an application for an order to stop bullying within 14 days, meaning that applications relating to bullying will likely receive priority treatment compared to other types of applications made to the Commission.
The Commission will have very broad powers to deal with an application relating to bullying including the ability to make orders that:
- the individuals stop engaging in certain behaviour;
- the employer monitors the behaviour of the individuals;
- the individuals comply with the employer’s workplace bullying policy (the Commission may review and amend the policy if necessary); or that
- the employer provides support and training to its employees.
If an individual or an employer contravenes an order of the Commission they expose themselves to a risk of a civil penalty being imposed against them.
Given the media attention on the issue of bullying in recent times and the increased number of bullying complaints and grievances that are being made by workers, employers ought to review their existing workplace bullying and harassment policies to ensure that employees are aware of what the expectations are with respect to bullying (or create a workplace bullying and harassment policy if one does not exist already).
New ‘Family Friendly’ Measures
A number of ‘family friendly’ proposed amendments feature prominently in the Fair Work Amendment Bill 2013 (Cth) which include (among other things) the following:
- changes to the way ‘special maternity leave’ interacts with parental leave;
- increases to the rights of a partner to take concurrent parental leave;
- expansions to the type of worker that will have a right to request flexible working arrangements extending the right to the disabled, carers, victims of domestic violence and to those aged over 55;
- clarification of what constitutes ‘reasonable business grounds’ when refusing to accommodate a request for flexible working arrangements; and
- expansions to the ‘consultation’ provisions in modern awards so that they extend to changes to an employee’s regularly rostered hours.
Employer’s should note in particular the effect of the changes to the right to request flexible working arrangement to avoid (even inadvertently) breaching the National Employment Standards. Potentially having an even greater effect on day to day business, employers will likely soon be obligated to ‘consult’ with an employee prior to altering their regularly rostered hours or risk potentially breaching the terms of the relevant modern award.
Other changes to the Fair Work system included changes to the right of unions to enter a workplace to have meetings with members and potential members, and changes to what the Commission must consider when determining modern award entitlements of employees that perform unsocial, irregular or unpredictable hours.
The proposed ‘bullying jurisdiction’ and ‘family friendly’ changes are well on their way to becoming Australian law, and both sets of changes have the potential impact on the day to day operations of employers.
Employers should be aware of the impending ability of an employee to seek the intervention of the Commission in cases of alleged bullying, and be aware that the Commission will ‘fast-track’ the employee’s application.
Employers should also make themselves aware of amended ‘family friendly’ measures to ensure that their obligations owed to their employees are being met. In addition, the clarification of what constitutes ‘reasonable business grounds’ will likely place a greater obligation on employers to accommodate employees who seek flexible working arrangements.
Clifford Gouldson Lawyers’ Workplace Team can assist employers to determine and prepare for the effect the changes to the Fair Work system will have on their business.