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Australia – Fair Work Act Review Panel Report: An Update On Implementation

19 September, 2013

WHAT YOU NEED TO KNOW

 

  • On 2 August 2012 the Fair Work Act Review Panel’s report into the Fair Work Act was released. The Report made 53 recommendations.
  • The Fair Work Act Review Panel’s terms of reference were limited to the extent to which the Fair Work Act was working “as intended”, and “areas for improvement”.
  • The Labor Government has implemented, in whole or in part, 22 of the Review Panel’s recommendations.
  • A further three recommendations have been effected by court or commission decisions.
  • The table below shows the progress made on implementation of the 53 recommendations and whic recommendations are supported by the Coalition’s workplace relations policy.

 

In a previous Employment Alert, we set out the election policies of the Labor, Coalition and Greens parties on workplace relations.


In this Alert, we show the progress on implementation of the 53 recommendations made by the Fair Work Act Review Panel in its report released on 2 August 2012.
It is important to remember that the Fair Work Act Review Panel’s terms of reference were limited to the extent to which the Fair Work Act was working “as intended”, and “areas for improvement”.


The table below shows that the Labor Government has implemented, in whole or part, 22 of the Review Panel’s recommendations.


A further three recommendations have been effected, in full or in part, by Fair Work Commission or court decisions.


The Government also made a number of changes not included in the Review Panel’s recommendations, such as the anti-bullying, right of entry and consultation on working hours and roster change amendments.


Many important areas of reform identified by the Fair Work Act Review Panel have so far been left untouched.


Labor has not issued a formal workplace relations election policy. However, the Hon Bill Shorten, Minister for Industrial Relations has indicated support for arbitration of protracted disputes, and for the Review Panel’s recommendation in relation to arbitration of greenfield agreements where negotiations have reached an impasse.


The Coalition’s workplace relations policy includes implementing 17 more of the review panel’s 53 recommendations. The 22 August 2013 Employment Alert sets out details.
The table below shows in a snapshot that the Coalition would implement Review Panel recommendations mainly in relation to the safety net, enterprise bargaining, industrial action, right of entry, transfer of business and unfair dismissal.


The Coalition has said that any further changes will be the subject of a Productivity Commission review and not implemented until after the election following this one.

 

 

Fair Work Act Review reccomendation Page Done Proposed
Chapter 4: Contemporary industrial relations and the economy Labor Coalition
1 The Panel recommends that the role of the Fair Work institutions be extended to include the active encouragement of more productive workplaces. This activity may, for example, take the form of identifying best-practice productivity enhancing provisions in agreements and making them more widely known to employers and unions, encouraging the development and adoption of model workplace productivity enhancing provisions in agreements, and disseminating information on workplace productivity enhancement through conferences and workshops. The Panel does not consider that amendments to the FW Act are required to implement this recommendation. 85  
Chapter 5: The safety net
2 The Panel recommends that s. 130 be amended to provide that employees do not accrue annual leave while absent from work and in receipt of workers’ compensation payments. 89  
3 The Panel recommends that s. 76 be amended to require the employer and the employee to hold a meeting to discuss a request for extended unpaid parental leave, unless the employer has agreed to the request. 94  
4 The Panel recommends that s. 80(7) be repealed so that taking unpaid special maternity leave does not reduce an employee’s entitlement to unpaid parental leave under s. 70. 95  
5 The Panel recommends that s. 65 be amended to extend the right to request flexible working arrangements to a wider range of caring and other circumstances, and to require that the employee and the employer hold a meeting to discuss the request, unless the employer has agreed to the request. 99 √ in part  
6 The Panel recommends that s. 90 be amended to provide that annual leave loading is not payable on termination of employment unless a modern award or enterprise agreement expressly provides to that effect. 100  
7 The Panel recommends that the Commonwealth, state and territory governments should expedite the development of a national long service leave standard with a view to introducing it by 1 January 2015. 102  
8 The Panel recommends that the Government consider limiting the number of public holidays under the NES on which penalty rates are payable to a nationally consistent number of 11. 103    
9 The Panel recommends that the better off overall test in s. 144(4)(c) and s. 203(4) be amended to expressly permit an individual flexibility arrangement to confer a non-monetary benefit on an employee in exchange for a monetary benefit, provided that the value of the monetary benefit foregone is specified in writing and is relatively insignificant, and the value of the non-monetary benefit is proportionate. 109  
10 The Panel recommends that the FW Act be amended to require an employer, upon making an individual flexibility arrangement, to notify the FWO in writing (including by electronic means) of the commencement date of the arrangement, the name of the employee party and the modern award or enterprise agreement under which the arrangement is made. 109    
11 The Panel recommends that the FW Act be amended to provide a defence to an alleged contravention of a flexibility term under s. 145(3) or s. 204(3) where an employer has complied with the notification requirements proposed in Recommendation 10 and believed, on reasonable grounds, that all other statutory requirements (including the better off overall test) had been met. 109  
12 The Panel recommends that s. 144(4)(d) and s. 203(6) be amended to require a flexibility term to require an employer to ensure that an individual flexibility arrangement provides for termination by either the employee or the employer giving written notice of 90 days, or a lesser period agreed between the employer and employee, thereby increasing the maximum notice period from 28 days to 90 days. 109 In part – FWC Full Bench decision
13 The Panel recommends that s. 144 and s. 203 be amended to include the prohibition currently under s. 341(3) preventing a prospective employer making an offer of employment conditional on entering into an individual flexibility arrangement. 110    
14 The Panel recommends that the FW Act be amended to expressly empower FWA to strike out an award variation application that is not made in accordance with the FW Act, is frivolous or vexatious or which has no reasonable prospects of success. 113  
15 The Panel recommends that s. 160 be amended to provide that the parties entitled to bring an application to make, vary or revoke a modern award under s. 158 can also apply to vary a modern award to remove an ambiguity or uncertainty. 113  
Chapter 6: Enterprise bargaining and agreement making
16 The Panel recommends that s. 238(3) be amended to require an applicant for a scope order to ‘take all reasonable steps’ to notify all other relevant bargaining representatives of the application. 139  
17 The Panel recommends that s. 229(3)(a) be deleted so bargaining representatives can apply for bargaining orders where bargaining commences more than 90 days before the nominal expiry date of an existing enterprise agreement. 140    
18 The Panel recommends that the FW Act be amended to apply the good faith bargaining obligations in s. 228 to proposed variations of enterprise agreements under Part 2-4, Division 7, with any necessary modifications. 141    
19 The Panel recommends that s. 174 be amended to provide that a bargaining notice must address only the matters specified in that section and the regulations made under it. 144  
20 The Panel recommends that bargaining notices issued by employers under s. 173 should be lodged with FWA and made available through publication on FWA’s website. 145    
21 The Panel recommends that s. 176 be amended to prevent an individual union official being a bargaining representative for employees for whom the official’s union does not have coverage. 146  
22 The Panel recommends the FW Act be amended to include a new provision after s. 240 which expressly empowers FWA to intervene on its own motion where it considers that conciliation could assist in resolving a bargaining dispute, including in respect of a greenfields agreement. 149    
23 The Panel recommends that the FW Act be amended to prohibit enterprise agreement clauses which permit employees to opt out of the agreement. 161  
24 The Panel recommends that s. 203 be amended to require enterprise agreement flexibility terms to permit individual flexibility arrangements to deal with all the matters listed in paragraph 1(a) of the model flexibility term in Schedule 2.2 of the FW Regulations, along with any additional matters agreed by the parties. 164  
25 The Panel recommends that the Government continue to monitor the application of the BOOT to enterprise agreement approvals, to ensure that it is not being implemented in too rigid a manner or resulting in agreements being inappropriately rejected. 166  
26 The Panel recommends that the FW Act be amended to prohibit the making of an enterprise agreement with one employee. 168  
27 The Panel recommends that the FW Act be amended to apply the good faith bargaining obligations in s. 228 to the negotiation of an s. 172(2)(b) greenfields agreement, with any necessary modifications. 172  
28 The Panel recommends that the FW Act be amended to require employers intending to negotiate a s. 172(2)(b) greenfields agreement to take all reasonable steps to notify all unions with eligibility to represent relevant employees. 172    
29 The Panel recommends that the FW Act be amended so that s. 240 (as with our Recommendation 22) applies to the negotiation of a s. 172(2)(b) greenfields agreement. 172    
30 The Panel recommends that the FW Act be amended to provide that, when negotiations for a s. 172(2)(b) greenfields agreement have reached an impasse, a specified time period has expired and FWA conciliation has failed, FWA may, on its own motion or on application by a party, conduct a limited form of arbitration, including ‘last offer’ arbitration, to determine the content of the agreement. 173  
Chapter 7: Industrial action
31 The Panel recommends that Division 8 of Part 3-3 be amended to provide that an application for a protected action ballot order may only be made when bargaining for a proposed agreement has commenced, either voluntarily or because a majority support determination has been obtained. The Panel further recommends that the FW Act expressly provide that bargaining has commenced for this purpose despite any disagreement over the scope of the agreement. 177  
32 The Panel recommends that Division 8 of Part 3-3 be amended to: 

(a) allow protected action ballots to be conducted by electronic voting

 

(b) allow an employee who becomes a union member after a protected action ballot order is obtained by that union to be included on the roll of voters for the ballot, and to vote on and take protected industrial action

 

(c) allow an employee bargaining representative who is a union member to be included in the group of employees to be balloted pursuant to a ballot order obtained by the employee’s union, and to vote on and take protected industrial action

 

(d) require FWA to ensure that ballot agents conduct ballots expeditiously

 

(e) if the group of employees to be covered by a proposed agreement includes employees covered by an agreement that has not passed its nominal expiry date, allow the remaining employees to be the subject of a ballot order, and to vote on and take protected industrial action.

183  
33 The Panel recommends that Division 9 of Part 3-3 be amended to provide that provision of accommodation does not constitute ‘payment’. Employers should continue to be required to provide accommodation even if employees are taking industrial action. 185 High Court decision  
34 The Panel recommends that the FW Act no longer confer power on the Minister to terminate protected industrial action, as s. 431 presently does. 187    
Chapter 8: Right of entry
35 The Panel recommends that s. 505 be amended to provide FWA with greater power to resolve disputes about the frequency of visits to a workplace by a permit holder in a manner that balances the right of unions to represent their members in a workplace and the right of occupiers and employers to go about their business without undue inconvenience. 195
36 The Panel recommends that s. 492 and s. 505 be amended to provide FWA with greater power to resolve disputes about the location for interviews and discussions in a way that balances the right of unions to represent their members in a workplace and the right of occupiers and employers to go about their business without undue inconvenience. 197  
37 The Panel recommends that the capacity for a permit holder to enter premises under s. 481 to investigate a suspected contravention relating to a member of the permit holder’s organisation should continue to apply, with appropriate limits, following the end of the member’s employment. 198    
Chapter 9: Transfer of business
38 The Panel recommends that s. 311 be amended to make it clear that when employees, on their own initiative, seek to transfer to a related entity of their current employer they will be subject to the terms and conditions of employment provided by the new employer. 206  
Chapter 10: Unfair dismissal
39 The Panel recommends that s. 386 be amended to bring employees who are subject to the circumstances set out in subsection (3) within the definition of ‘dismissed’ when the employment has terminated at the end of the specified period, on completion of the task or at the end of the season. 218    
40 The Panel recommends that the time limit for lodging unfair dismissal applications should be extended to 21 days (to align with the recommended amended time limit for general protections claims involving a dismissal). 224  
41 The Panel recommends that Division 5 of Part 3-2 be amended to provide that FWA can deal with applications by way of a hearing process that is informal, inquisitorial and determinative. 229    
42 The Panel recommends that the FW Act be amended to give FWA the discretionary power to dismiss applications under s. 394 in circumstances where the parties have concluded a settlement agreement, or where an applicant fails to attend a proceeding relating to the application, or where the applicant fails to comply with FWA directions or orders relating to the application. 229 √ in part
43 The Panel recommends that the FW Act be amended to provide that FWA is not required to hold a hearing when exercising powers to dismiss an application under s. 587, nor when exercising the recommended powers to dismiss an application involving a settlement agreement or a failure by an applicant to attend a proceeding or comply with an FWA direction or order. In each of those circumstances, FWA must be required to invite the applicant and the employer to provide further information before making a decision to dismiss the application or not. 229    
44 The Panel recommends that the FWA President give consideration to requiring applicants to provide more information about the circumstances of the dismissal in the initial documentation lodged with FWA. 230    
45 The Panel recommends that the FW Act be amended to allow FWA to make costs orders against a party that has unreasonably failed to discontinue a proceeding, or that has unreasonably failed to agree to terms of settlement that could have led to discontinuing the application, or that has through an unreasonable act or omission caused the other party to incur costs. 

 

230  
46 The Panel recommends that s. 401 be amended to allow FWA to make an order for costs against a lawyer or paid agent whether or not FWA has granted permission for the lawyer or agent to represent a party in the relevant application. 230  
Chapter 11: General protections
47 The Panel recommends that Division 7 of Part 3-1 be amended so that the central consideration about the reason for adverse action is the subjective intention of the person taking the alleged adverse action. 237 High Court decision in part
48 The Panel recommends that s. 357(2) be amended to provide a defence to the prohibition on misrepresenting a contract of employment as a contract for services only when the employer proves that at the time the representation was made, the employer believed that the contract was a contract for services rather than a contract of employment, and could not reasonably have been expected to know otherwise. 243    
49 The Panel recommends that s. 366 be amended to reduce the time limit for lodging a general protections claim relating to a termination of employment to 21 days (to align with the recommended amended time limit for unfair dismissal applications). 245  
Chapter 12: Fair Work Australia and Fair Work Ombudsman
50 The Panel recommends that the FW Act be amended to change the name of Fair Work Australia to a title which more aptly denotes its functions. It is recommended that the new title contain the word ‘Commission’ and that it no longer contain the words ‘Fair Work’. 251 √ in part  
51 The Panel recommends that s. 660 of the FW Act be amended to require that the appointment of the General Manager by the Governor-General be on the nomination of the President. 252  
52 The Panel recommends that the FW Act be amended to allow the President or any Deputy President to stay the operation of a decision under appeal or review, whether or not the President or Deputy President is a member of the Full Bench hearing the appeal or conducting the review. 252  
53 The Panel recommends that the power to appoint Acting Deputy Presidents for specified periods in s. 648 be extended to the appointment of Acting Commissioners. 252  

 

 

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For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com

 

David Lloyd, Ashurst
david.lloyd@ashurst.com

 

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