New Workplace Laws Passed
Just after 10 pm last night (27 June 2013) the Senate passed the Government's Fair Work Amendment Bill 2013. Changes within this legislation include the introduction of a bullying jurisdiction within the Fair Work Commission (FWC), expansion of the right to request flexible working arrangements and providing the FWC with the power to deal with disputes over the frequency of union access to sites for discussions with employees.
The FWC’s bullying jurisdiction which was to originally have started on 1 July 2013 has now been delayed by six months and will commence on January 2014.
Key changes in the legislation that we advised about in April this year are provided below.
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.
These changes will either commence on a date proclaimed in the Australian Government Gazette, or if no date is proclaimed, six months after the Bill receives royal assent.
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.
Employers must be ready
The proposed ‘bullying jurisdiction’ and ‘family friendly’ changes have the potential to 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.