workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Summary of Recent Changes to the Fair Work Act 2009 (Cth)


Summary  of Changes to the Fair Work Act 2009 (Cth)  

Amendments to the Fair Work Act 2009 (Cth) by way of the Fair Work Act Amendment Act 2013 came into effect either on 1 July 2013, or shall come into effect from 1 January 2014.

Significant changes that employers need to be aware of include; the ability for employees to apply to the Fair Work Commission (“FWC”) for an order to stop bullying, the right for unions to hold meetings in lunch rooms, an expansion of the right for employees to request flexible working arrangements and an extra obligation on employers to consult employees when changing rosters and ordinary working hours.

These changes will require amendment to most employers’ workplace policies.

Changes that commenced on 1 July 2013:

The changes noted here commenced on 1 July 2013.

Family-friendly changes:

The changes mean that:

  • pregnant women can transfer to a safe job even if they have not worked for their employer for 12 months;
    • if a safe job is not available, the employee is entitled to unpaid ‘no safe job leave’;
    • employees can take special maternity leave without it reducing the amount of unpaid parental leave they can take;
    • employee couples can take up to 8 weeks unpaid parental leave at the same time (increasing from 3 weeks), and can take it in separate periods (eg. two periods of 2 weeks off);

 Right to request flexible working arrangements:

More groups of employees now have the right to request flexible working arrangements, including, if they:

  • have responsibility for the care of a child who is of school age or younger;
  • are a carer within the meaning of the Carer Recognition Act 2010 (Cth);
  • have a disability;
  • are 55 years or older;
  • are experiencing violence from a family member; or
  • provide care or support to a person within their immediate family or member of their 
household, if that person requires care or support because they are experiencing violence.

Changes to the Act from 1 January 2014

The changes noted below will apply from 1 January 2014.

New anti-bullying measures:

One of the biggest changes to be implemented as a result of this legislation is the right for a worker who is bullied at work to apply to the FWC for an order to stop the bullying.   

A worker is bullied at work if an individual or a group of individuals repeatedly behaves unreasonably toward the worker, and the behaviour creates a risk to health and safety.  The definition of ‘bullying’ is expressly stated not to apply to reasonable management action carried out in a reasonable manner.  

Be aware that the definition of ‘worker’ is broader than ‘employee’ and includes contractors, outworkers, apprentices, trainees, work experience students and volunteers.

When the FWC receives an application for an order to stop bullying, it must be dealt with within 14 days.  In considering whether an order should be made, the FWC must take into account any matters the FWC considers relevant, including the:

  •         outcomes of any investigation into the matter at a workplace level, whether undertaken by the workplace, or another person;
  •         procedures available to the worker to resolve grievances or disputes; and
  •         outcomes arising out of any procedure available to the worker to resolve grievances or 

If the FWC makes an order to stop bullying and that order is breached, civil penalty provisions will apply.

Changes to right of entry rules:

These changes affect the rights and powers of officials of organisations who have entry permits to enter businesses.  The amendment allows unions to hold meetings in employee lunch rooms, and requires employers to provide accommodation and transport for union permit holders exercising right of entry at work sites in remote areas. 

Additionally, the FWC will now be able to deal with disputes about the frequency of union permit holders entering work premises to hold discussions with one or more employees.  The FWC can deal with the dispute by way of arbitration and can make orders such as suspending or revoking an entry permit and imposing conditions on an entry permit.

The changes will mean that:

  • interviews and discussions with employees must be held in an area that the business and permit holder agree to (lunch rooms can be used if no agreement can be reached);
  • the FWC will be able to deal with disputes about the frequency of visits;
  • the FWC will be able to: 

◦       deal with disputes about accommodation and transport arrangements, and

◦       ensure appropriate conduct by permit holders while they are receiving accommodation or being transported under the arrangements.

Genuine consultation on changes to rosters and hours of work:

Enterprise agreements, commencing after 1 January 2014, and modern awards, must now include a term requiring the employer to consult with employees about a change to their regular roster or ordinary hours of work.   This is in addition to the current requirement that employers consult with employees about major workplace changes that are likely to have a significant effect on the employees.  All awards and agreements will have to include a term that requires employers to genuinely consult with their employees about changes to their regular roster and ordinary working hours.

So, when employers want to change an employee’s regular roster or ordinary hours of work they will have to:

  • give information to employees about the changes,
  • invite employees to give their views about how the changes will affect/impact them, including the impact in relation to their family or caring responsibilities, and
  • consider the employees views about the impact of the change.

Agreements will also require employers to consult about any major change to a workplace that is likely to have a significant effect on the employees.

Protection of penalty rates:

The modern award objective in the  Act will be amended to protect penalty rates.  This will mean that the FWC, when making or changing a modern award, will have to take into account the need to provide additional pay for employees working:

  • overtime,
  • unsocial, irregular, or unpredictable hours,
  • on weekends or public holidays shifts.

Implications for Employers

The changes to the FW Act are significant and will require employers to review workplace policies to ensure they comply with the amendments.  This would involve amending any grievance or workplace behaviour policy to ensure employers have a robust complaints/dispute procedure (to avoid an employee making a claim to the FWC for orders to stop bullying before the complaint has been dealt with internally), updating parental leave policies, modify right of entry policies or processes, and potentially amending clauses in an enterprise agreement where the agreement is up for renewal after 1 January 2014.

Brooke Pendlebury
Sunday, October 6, 2013