Recent and upcoming changes to the Fair Work Act 2009
Times they are a changing!
Following a formal two-year review of the national Fair Work Act 2009 (“the act”), the former government passed a number changes to the Australian industrial relations landscape. Some of these changes came into effect on 1 July 2013 with the remaining scheduled for 1 January 2014.
The below article provides a brief overview of the main changes and what they mean for your business.
Amendments to parental leave
Prior to 1 July 2013, employees who had served 12 months of more with their employer were eligible for unpaid leave of 52 weeks. Furthermore, pregnant employees with tenure of 12 months or more were eligible to request a transfer to an alternative “safe job” within the company if their current role could not be completed safely due to their pregnancy. In the event that no “safe job” was available, the employee would go on paid no safe job leave.
The 12 months tenure requirement for the 52 weeks unpaid has now been removed. If there is no safe job available for an employee who has 12 months tenure or more, that employee can take paid “no safe job” leave. If the employee has not worked for more than 12 months, they may go on unpaid “no safe job” leave. Both types of "no safe job" leave last until the employee goes on maternity leave.
Special unpaid maternity leave, which means leave that is required prior to the birth of a child as a result of complications during pregnancy, can no longer be considered part of the total 12 months unpaid maternity leave. It remains the case that full time and part time employees can take paid personal leave (sick leave) within their yearly entitlement, if they cannot work because of a pregnancy related illness. Please see the comparative table below, which highlights the above changes.
Flexible work arrangements
The requirement that an employee must have worked for their employer for a period of 12 months or more prior to being eligible to make a request to their employer for a flexible work arrangement (“FWA”) remains. However, from 1 July 2013 there has been an expansion in regards to who is eligible to make such a request.
This expansion means that in addition to employees with caring responsibilities of children that are of school age or younger, employees with a disability and employees who are experiencing family violence or caring or supporting a family member who is experiencing family violence can also make a request for a FWA with their employer.
As previously the case, an employer will be able to refuse a request for a FWA on “reasonable business grounds”. However, From 1 July 2013, a non-exhaustive definition of “reasonable business grounds” is included into the act for the first time. This definition provides that the grounds in which an employer can refuse a request for a FWA includes but is not limited to the following:
- There is no capacity to change the working capacity of other employees to accommodate the request.· The new business arrangement requested by the employee would be too costly for the employer.
- It is impractical to change the working arrangements of the other employees or recruit new employees to accommodate the request.
- The new working arrangement requested by the employee is likely to result in a significant loss in efficiency or productivity.
- The new working arrangement requested by the employee is likely to have a significant negative effect on the business.
Requirement for consultation
Previously with the exception of Health and Safety matters, employers where only required to consult with employees on certain issues if they were required to do so by a relevant award or enterprise agreement (“EA”). However, from 1 July 2013 employers of all workers must consult with employees on issues such as changes to working hours and rosters irrespective of whether the employees are covered by an award or EA.
It is important to note that consultation does not always mean reaching an agreement but rather a process of engaging and considering the views and opinions of your employees.
Previously, employees wishing to make a complaint of bullying would need to do so through their workers’ compensation insurer or through the courts directly. From 1 January 2014, employees can make a bullying compliant to the Fair Work Commission (“FWC”) directly.
This change will be accompanied by the insertion of a definition of bullying definition into the act along the lines of:
Bullying is where an individual or group of individuals, repeatedly behave unreasonably towards a worker, or group of workers and that behavior creates a risk to the workers’ health and safety.
A defence of “reasonable management action” will apply to all bullying claims meaning that if an employer can prove that the behavior towards the aggrieved worker was a reasonable management process the claim will not proceed. Given the above definition, a single incident cannot be considered bullying. Performance management of underperforming employees is often an area associated with bullying complaints and this is expected to continue.
The new bullying laws will only apply to Pty Ltd companies and not sole traders. The FWC cannot make penalty orders for bullying claims but can make any other order it considers appropriate to stop the bullying. For example an order that two workers do no longer work in the same team etc.
The current government has proposed further changes to the above bullying jurisdiction of the FWC, which include involving state and territory Workplace Health and Safety Departments to first review bullying claims to determine whether they should then be passed on to the FWC.
Union rights of entry
Changes have also been made in relation to the rights of union representatives when meeting with members at their place of employment. The new changes require that prior agreement must be reached between the union representative and the employer in regards to the location of the meeting. If an agreement cannot be reached, the meeting can take place in the company’s meal break room.
Further action for your business
It is important to ensure that the HR policies for your business are updated to reflect the above changes to provide certainty to you and your employees and avoid potential complaints from aggrieved employees and fines from the FWC, which can be to the tune of $10,200.00 for individual directors and $51,000.00 for companies.
If you need any assistance implementing HR or WHS policies, or assistance with making changes to bring you into line with the new requirements outlined in this article, don’t hesitate to get in touch with Sync or Swim on 1300 851 281.
Article by: Paul Bright, Business Development and Compliance Specialist.