Creating a Family Friendly and Equitable workplace – New Changes to the FW Act.

Creating a family friendly and equitable workplace – new changes to the FW Act.

The Fair Work Amendment Bill 2013 (‘the Bill’) was passed on 27 June 2013 and forms part of the Government’s post-implementation review of the Fair Work Act (‘the Act’).  The Bill implements some more of the recommendations set out in the independent expert report entitled ‘Towards more productive and equitable workplaces: an evaluation of the Fair Work Legislation’ which was published in June 2012.

The key amendments include:

1. Expansion of family friendly measures (effective from 6 months after assent);
2. Changes to the modern award review objective (effective from 1 January 2014);
3. Creation of new anti-bullying provisions (effective from 1 January 2014);
4. Changes to union right of entry provisions (effective from 1 January 2014); and
5. Changes to hearing procedures for general protection disputes (effective from 1 January 2014)

 
1.    Expansion of family friendly measures;

(a)  Right for pregnant women to transfer to a safe job

Under the Act, pregnant employees who have performed twelve months’ continuous service with their employer and who are otherwise eligible for unpaid parental leave have an entitlement to special maternity leave, that is, a right to be transferred to a safe job for a risk period.

The Act now provides that any period of special maternity leave taken by an employee will not reduce that employee’s overall entitlement to unpaid parental leave.

The Act will now also provide that a pregnant employee’s present entitlement to transfer to a safe job will exist irrespective of her entitlement to unpaid parental leave, that is, whether or not she has completed at least 12 months of continuous service with her employee immediately before the proposed leave is to start. The effect of the amendment is that all pregnant employees can transfer to a safe job, irrespective of their length of service. In the event no safe job is available, any pregnant employee would be eligible to ‘no safe job’ leave, which is paid leave if the employee has been employed for more than 12 months.

(b)  Concurrent unpaid parental leave

The Act currently provides that in circumstances where both members of a couple wish to take unpaid parental leave at the same time, it be taken consecutively and in a single unbroken period.  There is, however, an exemption that allows parents to take concurrent unpaid parental leave at the same time for a period of three weeks from the date of the child’s birth or adoption.

The Bill will extend the maximum period of concurrent leave under the Act from three (3) to eight (8) weeks. Parents will also be able to elect when they wish to take concurrent leave, allowing them to take the 8 weeks in separate periods of at least two (2) weeks or a shorter period by agreement with the employer.

(c)   Right to request flexible working arrangements

Under the Act, an employee who is a parent, or has responsibility for the care of a child, may request a change in their working arrangements to assist them to care for the child if that child is under school age or under 18 years and has a disability. Such individuals can request to change their:

• hours of work (i.e. reduced hours or change to start and finish times)
• patterns of work (i.e. splitting shift or job sharing)
• location of work (i.e. working from home)

In a way that recognises the interests of particular employee groups and acknowledges that they may require further assistance, the Act will be amended to allow the following individuals to make requests for flexible working arrangements:

• parents, or those who have responsibility for the care of a child who is of school age or younger;
• carers within the meaning of the Carer Recognition Act 2010 (Cth). For example, an employee providing personal care, support and assistance to another due to disability; a mental condition (including a terminal or chronic illness); mental illness; or frailty and age. those with a disability;
• those who are 55 or older;
• those experiencing violence from a member of the employee’s family; and
• those who provide care or support of a member of his or her immediate family or a member of his or her household who requires care or support because the member is experiencing violence from the member’s family.

 
The Bill will also insert a new definition of ‘reasonable business grounds’ upon which an employer may refuse an employees request for flexible working arrangements. There is now a non-exhaustive list of factors to be considered in light of the particular circumstances of each workplace and the nature of the request made. They include that:

• the requested arrangements would be too costly;
• there is no capacity to change arrangements of other employees to accommodate the requested arrangements;
• it would be impracticable to change the working arrangements of other employees or recruit new employees to accommodate the request; and
• the requested arrangements would be likely to have a negative impact on customer service.

 
(d)  Consultation about changing rosters or working hours

The amendment to the Act will also incorporate new content requirements for modern awards and enterprise agreements. Employers will be required to genuinely consult with their employees prior to any changes being made to their regular rosters or ordinary hours of work. This is in light of the impact this may have on family and caring responsibilities.

2.     Changes to the modern award review objective; 

The modern award objective in s 134 of the Act will be amended to require Fair Work Australia to consider the need to provide additional remuneration to employees working overtime, unsocial, irregular or unpredictable hours, working weekends, public holidays or shifts when making or varying a modern award.

3.     Creation of new anti-bullying provisions;

A particular significant change is the introduction of new anti-bullying provisions in the FW Act. Not only will the Fair Work Commission (FWC) be able to handle disputes about bullying but actions and behaviours that constitute workplace bullying will be expressly identified in the Act. As a result, employees who reasonably believe they have been bullied at work will be able to apply to the FWC for a non-pecuniary order to stop and prevent further bullying. It is hoped this early intervention measure will halt bullying behaviour before an individual’s health and wellbeing is affected. A more detailed update on this will be provided shortly.

4.     Changes to union right of entry provisions

The changes to a union’s right of entry are somewhat controversial, with interest groups arguing that they facilitate unnecessary access to the workplace and go beyond an employee’s right of representation.

From 1 January 2014, permit holders, that is, organisation officials holding entry permits, will be allowed to conduct interviews and discussions in lunch rooms on worksites if agreements cannot be reached.

Provisions have also been included to facilitate accommodation and transport for permit holders in remote areas to allow them to exercise their rights under the Act. The FWC will also have the capacity to deal with disputes about the frequency of visits or transport and accommodation arrangements.

5.     Changes to arbitration of general protection disputes 

FWC will also be given new powers to arbitrate general protection dismissal and unlawful termination disputes. This provides an alternative to applying to the court and may be sought after the FWC has issued a certificate showing that conciliation has been attempted.

Employers should prepare for these changes by reviewing and adapting their policies on flexible working arrangements, parental leave and bullying and ensure they have procedures in place to adequately deal with these issues.

If you have any queries regarding changes to the FW Act or the Act in general, please contact Michael Bishop of our office on 03 9614 7707.

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