07 Sep 2013

Employers need to plan for new Government's evolution in workplace relations law

Although the Coalition Government elected today promises workplace reform that is more evolution than revolution, employers will need to carefully consider its effect on their operations in the next 12-18 months.

Its policy retains the framework of the existing Fair Work Act, which it said has "many positive aspects", and amends it rather than starting again from scratch. In the vast majority of cases, employers need not take any immediate action. Any change will not be passed until much later this year at the earliest.

No restrictions on individual flexibility arrangements

The Coalition Government will not permit individual flexibility arrangements to be restricted in an enterprise agreement.

The "Better Off Overall Test" will be retained for such arrangements.

There is no plan to reintroduce Australian Workplace Agreements.

Workplace bullying laws to be retained, but slightly amended

The Coalition supports and will retain the amendments made by the previous Government to the Fair Work Act to include workplace bullying.

They have, however, foreshadowed two amendments:

  • workers making an application to the Fair Work Commission in respect of workplace bullying will need to show they have first sought help from an independent regulatory agency such as a state work health and safety body; and
  • the scope of the workplace bullying provisions will be expanded to include the conduct of union officials towards workers and employers.

Greenfield agreements – new good faith bargaining requirements

The Coalition Government will introduce good faith bargaining requirements for the negotiation of greenfield agreements. These negotiations and the greenfield agreement will need to be completed within three months; if not, the Fair Work Commission will have the power to make and approve the agreement as long as it provides fair working conditions that are consistent with prevailing industry standards.

Australian Building and Construction Commission to be revived

The Coalition Government will re-establish the Australian Building and Construction Commission, replacing Fair Work Building and Construction. It will administer a national code and guidelines governing industrial relations arrangements for government projects.

A new threshold for protected action

The Coalition's policy is that before "protected action" can occur the Fair Work Commission will need to be satisfied that there has been genuine and meaningful talks between the employer and employees and that the claims made by both parties are "sensible and realistic".

Fair Work Review Panel

The Coalition promises to implement some of the recommendations of the Fair Work Review Panel that were not implemented by the previous Labor Government, including:

  • clarifying the circumstances when annual leave loading is payable on termination;
  • amending the "Better Offer Overall Test" to include consideration of non-monetary benefits; and
  • requiring an employer and employee to hold a meeting to discuss a request for extended unpaid parental leave, unless the employer has already agreed to the request.

Paid Parental Leave Scheme

While the Coalition has promised to introduce its own Paid Parental Leave Scheme, the full implications of this, and how it will interact with pre-existing employee entitlements, are not yet clear.

Right of entry

The Coalition will reverse the right of entry amendments passed in June this year, and seek to limit union entry for discussion purposes to:

  • a union covered by an enterprise agreement at that workplace; or
  • a union as a bargaining representative seeking to make an agreement in that workplace where there is evidence members have requested their presence.

For award-covered workplaces or non-union covered enterprise agreements, entry will be permitted only where a union can demonstrate it has, or had a representative role in that workplace and it has members who have requested their presence.

The coalition will give the Fair Work Commission powers to resolve disputes about the frequency of unions' workplace visits.

The proposed changes will not affect union rights to enter to investigate OHS breaches or represent a member in a dispute over an award or agreement.

As always, the Clayton Utz Workplace Relations, Employment and Safety team will keep you informed of developments as the Coalition's policies are implemented in this vital area.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.