Appendix A—Text of the Bill
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first
time
Fair Work Amendment
(Better Work/Life Balance) Bill 2012
No. , 2012
(Mr Bandt)
A Bill for an Act to amend
the Fair Work Act 2009, and for related purposes
Contents
1 Short
title.................................................................................1
2 Commencement...................................................................1
3 Schedule(s)............................................................................1
Schedule 1—Amendments 3
Fair Work Act 2009 3
1 A Bill for an Act to amend the Fair Work Act 2009, and
2 for related purposes
3 The Parliament of Australia enacts:
4 1 Short
title
5 This Act may be cited as the Fair Work Amendment (Better
6 Work/Life Balance) Act 2012.
7 2 Commencement
8 This Act commences on the day after this Act receives
the Royal
9 Assent.
10 3 Schedule(s)
11 Each Act that is specified in a Schedule to this Act
is amended or
12 repealed as set out in the applicable items in the
Schedule concerned,
13 concerned, and any other item in a Schedule to this
Act has effect
14 according to its terms.
1 Schedule 1—Amendments
2
3 Fair Work Act
2009
4 1 Paragraph 5(8)(a)
5 Omit “or an
equal remuneration order (see Part 2 7)”, substitute “, an
6 equal
remuneration order (see Part 2 7) or a flexible working
7 arrangements
order (see Part 2 7A)”.
8 2 Section 12
9 Insert:
10 flexible working
arrangements order: see subsection 306F(1).
11 3 Subparagraph
43(2)(a)(ii)
12 Omit “and”,
substitute “or”.
13 4 At the end of paragraph 43(2)(a)
14 Add:
15 (iii) a
flexible working arrangements order (see Part 2 7A);
16 and
17 5 Subsection 44(2)
18 Omit “65(5) or”.
19 6 Subsection 44(2) (note 1)
20 Repeal the note,
substitute:
21 Note
1: Subsection 76(4) states that an employer may refuse an application to
22 extend unpaid
parental leave only on reasonable business grounds.
23 7 Subsection 44(2) (note 2)
24 Omit “65(5) or”.
25 8 Division 4 of Part 2 2
26 Repeal the
Division.
27 9 Section 146 (note)
28 Omit “65(5) or”.
1 10 After paragraph 172(1)(c)
2 Insert:
3 (ca) matters
pertaining to flexible working arrangements;
4 11 Subsection 186(6) (notes 1 and 2)
5 Omit “65(5) or”.
6 12 After Part 2 7
7 Insert:
8 Part 2
7A—Flexible working arrangements
9 Division 1—Introduction
10 306A Guide to this Part
11
This Part provides processes for
changing working arrangements.
Division 1 deals with preliminary
matters.
Division 2 deals with requests for
flexible working arrangements, including flexible working arrangements for
employees who are carers.
Division 3 provides for the making of
flexible working arrangements orders by FWA to ensure that employers comply
with this Part. |
12
13
14
15
16
17
18
19 306B Meanings of employee and
employer
20 In this Part, employee
means a national system employee, and
21 employer
means a national system employer.
22 306C State and Territory laws
that are not excluded
23 (1) This Act is
not intended to apply to the exclusion of laws of a State
24 or Territory
that provide employee entitlements in relation to
25 flexible working
arrangements, to the extent that those entitlements
1 are more
beneficial to employees than the entitlements under this
2 Part.
3 (2) However, a
law of a State or Territory has no effect in relation to
4 an employee to
the extent that it provides an employee entitlement
5 in relation to
flexible working arrangements that is inconsistent
6 with a term of
an enterprise agreement that applies to the
7 employee.
8 Division
2—Requests for flexible working arrangements
9 306D Requests for flexible
working arrangements
10 Employee or
organisation may request change
11 (1) An employee,
or an employee organisation that is entitled to
12
represent
the employee, may request the employer to change the
13
employee’s
working arrangements.
14
Note:
Examples of changes in working arrangements include changes in
15
hours
of work, changes in patterns of work and changes in location of
16
work.
17 (2) Neither the
employee, nor the organisation, is entitled to make the
18
request
unless:
19 (a) for an
employee other than a casual employee—the employee
20
has
completed at least 12 months of continuous service with
21
the
employer immediately before making the request; or
22 (b) for a
casual employee—the employee:
23 (i)
is a long term casual employee of the employer
24
immediately
before making the request; and
25
(ii)
has a reasonable expectation of continuing employment
26
by
the employer on a regular and systematic basis.
27 Formal
requirements
28 (3) The
request must:
29 (a) be in
writing; and
30 (b) set out
details of the change sought and of the reasons for the
31
change.
1 Responding to
the request
2
(4)
The employer must give the employee, or the employee
3
organisation
(as the case requires), a written response to the request
4
within
21 days, stating whether the employer grants or refuses the
5
request.
6
(5)
The employer may refuse the request only on reasonable business
7
grounds.
8
(6)
If the employer refuses the request, the written response under
9
subsection
(4) must include details of the reasons for the refusal.
10 306E Requests for flexible
working arrangements—carers
11 Request for
change for employee who is a carer
12
(1)
An employee who has responsibility for the care of another person,
13
or
an employee organisation that is entitled to represent the
14
employee,
may request the employer to change the employee’s
15
working
arrangements to assist the employee to care for the other
16
person.
17
Note: Examples
of changes in working arrangements include changes in
18 hours of work,
changes in patterns of work and changes in location of
19 work.
20
(2)
Neither the employee, nor the organisation, is entitled to make the
21
request
unless:
22 (a) for an
employee other than a casual employee—the employee has
23 completed
at least 12 months of continuous service with
24
the
employer immediately before making the request; or
25 (b) for a casual
employee—the employee:
26 (i)
is a long term casual employee of the employer
27
immediately before making the request; and
28 (ii) has a
reasonable expectation of continuing employment
29
by
the employer on a regular and systematic basis.
30 Formal
requirements
31
(3)
The request must:
32 (a)
be in writing; and
33 (b)
set out details of the change sought and of the reasons for the
34
change.
1 Responding to
the request
2
(4)
The employer must give the employee, or the employee
3
organisation
(as the case requires), a written response to the request
4
within 21 days, stating whether the employer grants or refuses the
5
request.
6
(5)
The employer may refuse the request only on serious
7
countervailing
business grounds.
8
(6)
If the employer refuses the request, the written response under
9
subsection (4) must include details of the reasons for the refusal.
10 Division
3—Flexible working arrangements orders
11 306F FWA may make flexible
working arrangements order
12 Power to make
flexible working arrangements order
13
(1)
FWA may make any order (the flexible working arrangements
14
order) it considers
appropriate to ensure that an employer complies
15
with
section 306D or 306E.
16
Who
may apply for flexible working arrangements order
17
(2)
FWA may make a flexible working arrangements order only on
18
application
by any of the following:
19 (a) an employee
or organisation whose request under subsection
20
306D(1)
or 306E(1) for a change in working arrangements
21
has
been refused;
22 (b) an employee
organisation that is entitled to represent an
23
employee
covered by paragraph (a);
24 (c) the Age
Discrimination Commissioner, the Disability
25
Disability
Discrimination Commissioner or the Sex Discrimination
26
Commissioner.
27 306G Implementation of flexible
working arrangements in stages
28 A flexible
working arrangements order may implement changed
29 working
arrangements in such stages (as provided in the order) as
30 FWA thinks
appropriate.
1 306H Contravening a working
arrangements order
2 An employer must
not contravene a term of a flexible working
3 arrangements
order.
4 Note: This
section is a civil remedy provision (see Part 4 1).
5 306I Inconsistency with modern
awards and enterprise agreements
6 (1) A term of a
modern award has no effect in relation to an employee
7
to
the extent that it is less beneficial to the employee than a term of
8
a
flexible working arrangements order that applies to the employee.
9 (2) A term of a
flexible working arrangements order has no effect in
10
relation
to an employee to the extent that it is inconsistent with a
11
term
of an enterprise agreement that applies to the employee.
12 13 Subsection 539(2) (after table item 9)
13 Insert:
14
|
Part 2‑7A—Flexible
working arrangements |
|
9A |
306H |
(a) a person to whom a flexible working arrangements order
relates;
(b) an organisation entitled to represent a person to whom a
flexible working arrangements order relates |
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court |
60 penalty units |
15
16
14 Subsection
545(1) (note 4)
17 Omit “65(5),”.
18 15 After paragraph 557(2)(f)
19 Insert:
20 (fa)
section 306H (which deals with contraventions of flexible
21
working arrangements orders);
1 16 After paragraph 576(1)(f)
2 Insert:
3 (fa) flexible
working arrangements (Part 2 7A);
4 17 Paragraph
653(1)(c)
5 Repeal the paragraph,
substitute:
6 (c) conduct
research into the operation of the provisions of the
7
National
Employment Standards relating to requests for
8
extensions
of unpaid parental leave under subsection 76(1);
9 and
10 (ca) conduct
research into the operation of Part 2 7A in relation
11
to
requests for changed working arrangements; and
12 18 After paragraph 675(2)(e)
13 Insert:
14 (ea) a flexible
working arrangements order
15 19 At the end of subsection 716(1)
16 Add:
17 ; (g) a term of
a flexible working arrangements order.
18 20 Subsection 739(2)
19 Omit “65(5) or”.
20 21 Subsection 739(2) (note)
21 Omit “65(5) or”.
22 22 Subsection 740(2)
23 Omit “65(5) or”.
24 23 Subsection 740(2) (note)
25 Omit “65(5) or”.