Bills Digest no. 71 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
29 January 2016
Contents
Purpose
of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Parliamentary Joint Committee on Human Rights
Key issues and provisions
Concluding comments
Date introduced: 3
December 2015
House: House of
Representatives
Portfolio: Employment
Commencement: Sections
1–3 commence on Royal Assent. Schedule 1, Parts 1, 2, 4 and 6, and Schedule 2 commence
the day after Royal Assent. Division 1 of Part 3 commences six months after
Royal Assent. Divisions 2 and 3 of Part 3 commence six months after Royal
Assent unless earlier by Proclamation.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Fair Work Amendment (Remaining 2014
Measures) Bill 2015 (the Bill) is to reintroduce and seek passage of the measures
removed from the Fair Work Amendment Bill 2014 (the previous Bill) by amendment
in the Senate in November 2015.[1]
Like the previous Bill, the purpose of those ‘remaining measures’ is to make
amendments to the Fair Work Act 2009[2]
to respond to a number of outstanding recommendations from the 2012 Fair Work
Act Review[3]
and to implement part of the Coalition’s 2013 election commitments.[4]
The more substantive amendments contained in the Bill
concern union right of entry and individual flexibility arrangements in modern
awards[5]
and enterprise agreements.
There are two Schedules to the Bill. Schedule 1
contains the substantive amendments to the Fair Work Act and Schedule
2 deals with application and transitional matters relating to those
amendments.
There are two Schedules to the Bill. Schedule 1
contains the substantive amendments to the Fair Work Act and Schedule
2 deals with application and transitional matters relating to those
amendments.
Schedule 1 consists of six parts:
- Parts
1 and 2 make amendments to the National Employment Standards in Part 2-2 of
the Fair Work Act in order to:
- clarify
that on termination of employment untaken annual leave must be paid out at the
employee’s base rate of pay. The effect is that an annual leave loading would
only be payable if an applicable modern award or enterprise agreement expressly
provides for a more beneficial entitlement and
- prevent
employees from accruing or taking annual leave or any other type of leave while
absent from work and in receipt of workers’ compensation.
- Part
3 amends Part 2-3 and Part 2-4 in relation to the requirements for
flexibility terms in modern awards and enterprise agreements and individual
flexibility arrangements (IFAs) made under those terms. Amongst other things it
will:
- require
flexibility terms in enterprise agreements to include as a minimum, that IFAs may
deal with the following five matters: when work is performed, overtime rates,
penalty rates, allowances and leave loading and
- extend
the notice period to unilaterally terminate an individual flexibility
arrangement made under an enterprise agreement from 28 days to 13 weeks.
- Part
4 amends transfer of business provisions in Part 2-8 and provides that
there will not be a transfer of business under that Part when an employee
voluntarily moves between associated employers.
- Part
5 tightens the right of entry framework in Part 3-4 by amongst other
things:
- narrowing
the eligibility rules for entry for discussion purposes
- repealing
amendments made by the Fair Work Amendment Act 2013 and reinstating earlier
rules regarding
the location of interviews and discussions and
- directing
the Fair Work Commission’s (FWC’s) capacity to deal with disputes about the
frequency of union visits to premises for discussion purposes.
- Part
6 provides that, subject to certain conditions, the FWC is not required to
hold a hearing or conduct a conference when determining whether to dismiss an
unfair dismissal application under section 399A or section 587.
The Key issues and provisions section below considers
the more substantial amendments in the Bill contained in Parts 3 and 5 of
Schedule 1. The remaining Parts are more minor and technical and are dealt
with sufficiently in the accompanying legislative materials and also in Senate
Committee inquiry submissions.
History of the Bill
On 27 February 2014, the Government introduced the Fair Work
Amendment Bill 2014 (the previous Bill) into the House of Representatives.[6]
The rationale for that Bill was to respond to a number of outstanding
recommendations from the 2012 Fair Work Act Review[7]
and to implement part of the Coalition’s 2013 election commitments. For further
background on the previous Bill the reader is referred to the relevant Bills
Digest.[8]
The previous Bill was subject to inquiry by the Senate
Education and Employment Legislation Committee, with the Committee reporting on
5 June 2014 and recommending passage of the Bill. [9]
Separate dissenting reports by Senators from the Australian Labor Party and Australian
Greens both recommended that the Senate reject the Bill.
The previous Bill passed the Government–controlled House of
Representatives on 27 August 2014, however without Labor or Greens support, the
Government was only able to obtain passage of the Bill through the Senate with
crossbench support. The Senate crossbenchers obtained extensive changes to the
previous Bill, omitting all but the provisions for negotiating greenfields
agreements, protected action ballot orders, extending unpaid parental leave and
reclaiming unpaid moneys.[10]
The Government was unable to attract sufficient support from
crossbenchers for key elements of the previous Bill that would have tightened
union right of entry, amended provisions regarding IFAs, clarified obligations
regarding payment of annual leave loading on termination and ensured transfers
to related entities did not have to comply with transfer of business
requirements. These provisions were removed from the previous Bill by amendment.[11]
The Coalition and crossbench Senators Glenn Lazarus, John
Madigan, Zhenya Wang, Nick Xenophon, Bob Day, David Leyonhjelm, and Ricky Muir
provided 33 votes to pass the previous Bill as amended, while Labor, the Greens
and independent Senator Jacqui Lambie opposed it.[12]
The measures removed from the previous Bill are now
replicated without change in this Bill, the Minister in her second reading
speech stating that the Bill is being introduced to ‘allow for the continuation
of constructive discussions with crossbench Senators’, with the Government
intending ‘to work constructively with the crossbench to deliver on its
election commitments’.[13]
Senate Education
and Employment Legislation Committee
The Bill has been referred to the Senate
Education and Employment Legislation Committee for inquiry and report by
4 February 2016 (the Senate Committee inquiry). Details of the inquiry are at
the inquiry
web page.[14]
As noted above, the previous Bill was also considered by the
Committee and details of that inquiry are at the inquiry
web page. [15]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bill has not considered the Bill. The Committee did consider the
previous Bill and had no comment.[16]
The Australian Labor Party and the Australian Greens have
not yet commented on the Bill. However both parties opposed the previous Bill
including the measures now reproduced in the current Bill.
The Labor Senators in their dissenting report argued the
amendments to do with IFAs would remove some of the existing protections for
employees and would target low-paid workers and vulnerable groups of workers
who would be left unrepresented and at the mercy of more informed employers.[17]
The Australian Greens in their dissenting report were also
critical of the IFA measures describing them as ‘particularly disturbing’, arguing
also that the amendments would allow unscrupulous employers to exploit
employees.[18]
At the time of writing, the views of individual cross
bench Senators are not known, although the major amendments the Senators
negotiated with the previous Bill would suggest there is at least some
opposition to the current Bill.
At the time of writing, the Senate Committee inquiry into
the Bill has received 19 submissions, including 13 from groups representing
employer and business interests and five from groups representing the interests
of employees and unions. Employer groups consistently support the Bill whereas
employee groups and unions oppose it.
Amongst employer groups, the Australian Industry Group
states the amendments proposed by the Bill are sensible and consistent with key
recommendations of the 2012 Fair Work Act Review:
The amendments are largely technical in nature and respond to
areas of confusion or inconsistency within the Fair Work system. They are
important to restore the necessary balance between stakeholders in the
employment relationship, and are integral for harmonious and productive
workplace relations at the enterprise level.[19]
The Australian Federation of Employers and Industries
(AFEI) argues that the current IFA scheme was drafted with the intention of
constraining their use and ensuring they could be readily challenged, with the
consequence that their use is minimal. AFEI supports the amendments concerning
IFAs arguing they give some recognition of these restrictions, although noting
also that if the workplace regulation system was ‘balanced and reasonable, it
would enable, not constrain, flexibility in workplaces and there would be no
need for these cumbersome so called flexibility provisions’.[20]
Similarly in relation to the right of entry provisions AFEI argues in support
of the amendments stating they remove certain of the unbalanced and unnecessary
provisions introduced by the previous Labor Government in the Fair Work
Amendment Act 2013.[21]
Amongst union groups, the Australian Council of Trade Unions
(ACTU) argues on the point of IFAs that there is already evidence that IFAs are
abused and manipulated by employers and that this will be exacerbated by the
proposed changes in the Bill. The submission states:
The proposed amendments contained in the Bill with respect to
IFAs undermine existing protections for employees. If accepted these amendments
will enable employers to make agreements that bear a remarkable resemblance to
the old [Australian Workplace Agreements] AWAs and have similar consequences
for employees.[22]
In relation to the right of entry provisions, the ACTU
states that the amendments are derived from right of entry provisions which
existed under WorkChoices, arguing also:
[t]he new provisions clearly limit the capacity of vulnerable
workers to access their union. Employees are unlikely to be aware of the
legislative requirements concerning right of entry and may not know which union
is eligible to represent their interests. Fear of retribution from their
employer will also deter many employees from issuing an invitation to the
relevant union.[23]
The Explanatory Memorandum states that the Bill will have
no financial implications.[24]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[25]
At the time of writing this Bills
Digest, the Parliamentary Joint Committee on Human Rights (Human Rights
Committee) had not published any comments in relation to the Bill. However the
Committee in its report on the previous Bill raised questions regarding the Government’s
Statement of Compatibility suggesting that in some respects it had not adequately
addressed the questions of the Bill’s compatibility with certain international
rights regarding just and favourable working conditions, freedom of association
and the right to bargain collectively.[26] Amongst other things, those questions related to the
amendments regarding IFAs, right of entry and the changes to leave entitlements
with regard to termination and workers compensation.[27]
The Fair Work Act provides that all modern awards
and enterprise agreements are to contain a ‘flexibility term’. This enables an
employee covered by the award or agreement and their employer to agree to an
arrangement, called an individual flexibility arrangement (IFA)). This is an
arrangement varying the effects of certain terms in the modern award or the
enterprise agreement in order to meet the genuine needs of the employee and
employer.
The usual flexibility term in modern awards enables an IFA
to vary the terms about arrangements to do with when work is performed,
overtime and penalty rates, allowances and leave loading.[28]
In contrast, the scope of an enterprise agreement
flexibility term is currently a matter for negotiation between the parties to
the agreement, although they are also able to adopt the model flexibility term
in Schedule 2.2 of the Fair Work Regulations 2009 which limits variation of
agreement conditions under IFAs to matters dealing with working hours, overtime
rates, penalty rates, allowances and leave loadings.[29]
This model term applies by default where the parties do not include a
flexibility term in an agreement and is based on the flexibility term included
in modern awards.[30]
If the model term is not used, the flexibility terms must
meet the further requirements of section 203.[31]
Under section 204 an IFA that does not meet one or more of the requirements for
flexibility terms in section 203 still has effect as if it were an IFA,
ensuring that an employee’s benefits under the arrangements are preserved. A
failure by the employer to meet the requirements for flexibility terms may be a
contravention of Part 3-1 of the Fair Work Act which provides general
protections of workplace rights.
An IFA has effect in the same way as if it were a term of
an enterprise agreement (and is therefore enforceable in the same way) and the
agreement operates as if it were varied by the IFA but only in relation to the
employer and employee that have made the IFA.[32]
Flexible terms in modern awards
Section 144 currently sets out the arrangements for
flexibility terms in modern awards. It includes amongst other things that the
flexibility term must identify the terms of the award that may be varied by an
IFA, a requirement that an employee and employer genuinely agree to the
arrangement, and a requirement that the employer ensures that the IFA results
in the employee being better off overall than if there had been no IFA.
Part 3, Divisions 1 and 2 (items 5 to 9)
of Schedule 1 of the Bill propose the following additions and changes in
relation to the requirements for flexibility terms in modern awards.
The flexibility term must include a requirement for a
genuine needs statement in any IFA. The employer will need to obtain this
statement from the employee—setting out the employee’s reasons for why he/she
thinks the flexibility arrangement meets the needs of the employee and results
in the employee being better off overall under the arrangement (item 5, proposed
paragraph 144(4)(ca)).
IFAs must include a statement specifying the notice
requirements for termination of any IFA— to be either 13 weeks written
notice of termination, or at any time if the employee and employer agree in
writing to the termination (item 6, proposed paragraph 144(4)(d)).
The Explanatory Memorandum notes the existing provision does not specify a time
frame for termination, although the 13 week time frame is consistent with a
decision of the Full Bench of the FWC.[33]
Item 7 adds a clarifying note at the end of
existing subsection 144(4) stating that non-monetary benefits can be taken into
account in assessing whether an employee is better off overall under the IFA.
Note the Explanatory Memorandum emphasises this is not a new requirement but
only a clarification of existing arrangements.[34]
Item 9 inserts proposed section 145AA which
provides some protection for the employer from liability for contravention of a
flexible term of a modern award in relation to a particular IFA. The employer
would not be liable in cases where he/she reasonably believes the requirements
of the term were complied with. The Explanatory Memorandum states that the
genuine needs statements (see above proposed paragraph 144(4)(ca))
would be available as evidence of the employee’s state of mind at the time the
arrangement was agreed to.[35]
Flexible terms in enterprise
agreements
Section 203 of the Fair Work Act sets out the
requirements for flexibility terms in enterprise agreements. As already noted,
it includes amongst other things that the flexibility term must identify the
terms of the enterprise agreement that may be varied by an IFA, a requirement
that an employee and employer genuinely agree to the arrangement, a requirement
that the employer ensure that an employee is better off overall under any IFA
that may be made under the flexibility term and that any such IFA may be
terminated by the employer or employee on up to 28 days’ notice—or by agreement
at any time.
Part 3, Division 3 of Schedule 1 (items
10–17) of the Bill proposes the following additions and changes in
relation to the requirements for flexibility terms in enterprise agreements.
The flexibility term must provide that if the terms of the
enterprise agreement deal with arrangements about when work is performed,
overtime rates, penalty rates, allowances and leave loading then these matters
may be varied in any arrangement agreed to under the flexibility term (item
10, proposed paragraph 203(2)(a)). Currently the inclusion of these
five matters in the flexible term is subject to the bargaining process. The
Explanatory Memorandum points out that these five minimum matters are already
included in modern awards and are also part of the model term in Schedule 2.2
of the Fair Work Regulations.[36]
The flexibility term must include a requirement for a
genuine needs statement in any IFA. The employer will need to obtain this
statement from the employee—setting out the employee’s reasons for why he/she
thinks the flexibility arrangement meets the needs of the employee and results
in the employee being better off overall under the arrangement (item 13,
proposed subsection 203(4A)).
The flexibility term’s written notice of termination of an
IFA is to be 13 weeks (91 days) rather than the current four weeks (28 days) (item
14, section 203).
Item 12 adds a clarifying note at the end of
subsection 203(4) which relates to the Better Off Overall Test for IFAs. The
note states that non-monetary benefits can be taken into account in assessing
whether an employee is better off overall under the IFA. The Explanatory
Memorandum emphasises that this is not a new requirement but only a
clarification.[37]
Item 17 inserts proposed section 204A which
provides protection from liability for the employer from contravention of a flexible
term of an enterprise agreement in relation to a particular IFA in cases where
the employer reasonably believes the requirements of the term were complied
with.
In relation to the Better Off Overall Test for IFAs and
taking account of non-monetary benefits, it is of note that the Bill differs
from Recommendation nine in the 2012 Review.
The Explanatory Memorandum argues that non-monetary benefits can
already be considered and therefore there is no need for a substantive
provision.[38]
Hence the use of a note in items 7 and 12 rather than a specific
legislative provision.
However the 2012 Review recommended that the Better Off
Overall Test in subsections 144(4)(c) and 203(4) be amended to expressly permit
an IFA 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.[39]
It would seem that implementing the Review’s Recommendation
nine would provide more protection for employees by inclusion of the qualifier
that the monetary benefit foregone must be relatively insignificant.
In response to the Human Rights Committee question about why
recommendation nine was not adopted in the form recommended by the Review Panel
in the previous Bill, the Minister for Employment stated:
In relation to recommendation nine, the Government considers
that requiring valuation of benefits traded in an individual flexibility arrangement
would introduce unnecessary red tape and place an unnecessary and unreasonable
burden on employers and employees. Not all benefits traded in an individual
flexibility arrangement are capable of being assigned an accurate or even
meaningful monetary value, particularly if the benefits in question are not
monetary. The value of monetary benefits is also likely to change over time,
for example due to annual wage increases or promotions. Similarly, requirements
that the monetary value foregone be ‘relatively insignificant’ and ‘proportionate’
are inherently arguable and uncertain and would add complexity without providing
any further protection for employees.[40]
The Australian Workers Union (AWU) raised concerns about
the amendment that expands the subject matter of IFAs (item 10)
submitting that it will encourage employers to propose IFAs on these matters as
a template for all employees, rather than consider the individual requirements
of each employee as is envisaged by the section.
The AWU submits that it is not appropriate for the Act to
specify a wish-list for employers to propose to employees in relation to IFAs
or to enshrine in enterprise agreements, particularly as these are the matters
in which employees are likely to experience more pressure to negotiate away
their superior conditions from awards or agreements that have been carefully
considered by the Fair Work Commission.[41]
Union groups in submissions to the Senate Committee
inquiry also argued against the introduction of the genuine needs statement and
the provisions providing protection from liability for employers.[42]
They submit that both these amendments are a defence mechanism for an employer
which would mean that the employer has no obligation to ensure that an employee
entering into an IFA has given informed consent to this course of action. The
ACTU states:
Because each IFA will now include a testimonial from the
worker about how it meets their needs and leaves them better off overall,
employers are likely to rely on that testimonial to demonstrate their ‘reasonable
belief’ for the purposes of the defence. A successful defence will result in no
exposure to a penalty, and no requirement to remedy any underpayment.
The ACTU submits that these amendments are likely to
completely undermine the protection afforded to employees by the BOOT [Better
Off Overall Test] and the requirement that an IFA be genuinely made. [43]
A final point regarding IFAs concerns the provisions
already in the Fair Work Act that provide flexible working conditions.
In other words, employees may not need to use IFAs to obtain benefits that were
in fact implemented through family friendly provisions in the 2013 amendments
to the Fair Work Act.[44]
Union right of entry has been a contentious issue in the
regulation of workplace relations in recent years. On the one hand right of
entry to workplaces for the purposes of consulting with union members and those
eligible to become members has been seen as fundamental to the core purpose of
trade union organisation. On the other hand employer groups have argued that
unbridled intrusion by unions into the workplace can interfere with the conduct
of business. As has often been noted, balance is the key to facilitating entry
and preventing intrusion.[45]
The Coalition in its 2013 election policy argued that the
Labor Government right of entry reforms implemented in 2009 and subsequently
amended in 2013 tipped the balance too far towards the rights of unions. In
particular they argued that the 2009 changes were broken promises and the 2013
amendments went beyond the recommendations of the 2012 Fair Work Act Review.
The Policy flagged an intention to tighten right of entry laws and revert to
the 2007 framework.[46]
The amendments in Part 5 of Schedule 1 implement that policy.
Part 3-4 of the Fair Work Act provides that union
officials who hold the requisite right of entry permits, and who observe the
prescribed procedural and substantive rules, are able to visit employees in
their workplace in three circumstances:
- to
investigate suspected breaches of industrial laws and fair work instruments in
relation to or affecting their union members working on the premises (section
481)
- to
hold discussions with employees who are, or are eligible to be, members of their
union (section 484) or
- to
investigate breaches of state occupational health and safety laws (section 494).
The amendments in Part 5 of Schedule 1 of the Bill
deal with the second of these circumstances— the right of entry to hold
discussions.
Item 25 repeals and replaces section
484. Currently section 484 provides that a union official who
is a permit holder is entitled to enter a workplace for discussions or
interviews with employees or TCF[47]
award workers in cases where the union is entitled to represent the employees
and where the employees wish to participate in those discussions. In other
words there is currently no requirement that the employees concerned have their
conditions regulated by an agreement that is binding on the relevant union.
Proposed section 484 tightens the threshold for
union entry so that in order to enter a workplace for discussions a union must also
be covered by an enterprise agreement that applies to work performed on the
premises (proposed subsection 484(1)).
In circumstances where the union is not covered by an
enterprise agreement at the workplace, proposed subsection 484(2) provides
that a union official is only allowed entry for discussions, where the union
has been invited to send a representative to the workplace by a member or
prospective member who works at the premises.
For this purpose the FWC will be able to issue invitation
certifications. Proposed section 520A, inserted by item 31, sets
out the requirements of such certificates, including that the FWC must be
satisfied that a member/prospective member of the union works at the premises; that
the union is entitled to represent the interests of the member and the member
has invited the union to the premises for discussions. An invitation
certificate must not reveal the identity of the member or prospective member to
whom it relates. The Explanatory Memorandum explains that the ability to apply
for such a certificate prevents the need to disclose the identity of the member
or prospective member of an organisation who has extended an invitation to the
union.[48]
Item 26 repeals sections 492 and 492A and
substitutes new section 492. Existing section 492, inserted in 2013,
provides that the permit holder and the occupier of the premises can agree on a
room or area for interviews and discussions. If they cannot agree, the default
is that the room where employees take their meal breaks can be used. Existing
section 492A provides that the permit holder should comply with a reasonable
request by the occupier of the premises to take a particular route to the room
or area.
New section 492 provides that the permit
holder must comply with any reasonable requirement by the occupier of the
premises to:
- conduct
interviews or hold discussion in a particular room or area or
- take
a particular route to reach a particular room or area.
Proposed subsection 492(2) provides examples of when
a request may be unreasonable and includes amongst other things:
- the
room is not fit for purpose and
- the
request is made in order to intimidate or discourage or make it difficult to
participate.
The new section is effectively reinstating the rules
regarding rooms for discussion that existed prior to the 2013 amendments.
Section 505A, introduced in 2013, gives the FWC the power
to deal with a dispute about the frequency of union entry to hold discussions.
Under subsection 505A(3), the FWC may deal with disputes including by making
orders imposing conditions on an entry permit, suspending or revoking an entry
permit, and making any other appropriate orders. However under subsection
505A(4), the FWC may only issue such an order if it is satisfied that the
frequency of visits is such as to require an ‘unreasonable diversion of the
occupier’s critical resources’. Item 29 repeals subsection 505A(4) with
the effect of removing the need for the FWC to consider if the visit would
cause an ‘unreasonable diversion of the occupier’s critical resources’.
Under existing subsection 505A(6) the FWC
must take into account fairness between the parties when dealing with disputes
about frequency of entry. Item 30 repeals this provision and inserts new
subsections 505A(6) and 505A(7). The effect being that in addition to
taking account of the fairness between the parties concerned the FWC must also
take account of the combined impact of visits by permit holders on the
operations of the employer or occupier.
Item 33 repeals Division 7 of Part 3-4 of
the Fair Work Act. This Division, inserted in 2013, requires
occupiers of premises to enter into accommodation and/or transport arrangements
for permit holders where the location of the premises is such that only the
occupier of the premises can provide the accommodation and/or transport (that
is, in remote areas). The accommodation and/or transport must be provided at a
fee which is no more than is required to cover costs. The repeal of these
provisions means that the previous approach of permit holders and employers
making their own arrangements would apply.
As noted above employer and employee interest groups have
opposing views about the right of entry provisions, with employers generally
arguing the amendments would remove certain of the unbalanced and unnecessary
provisions introduced by the previous Labor Government, and employee groups
stating that the amendments will unfairly restrict the access of workers to
their unions at work.[49]
The Human Rights Committee in its report on the previous Bill
also raised concerns with a number of the right of entry provisions and requested
the Minister provide advice on whether the amendments were compatible with the
right to collectively bargain and the right to freedom of association.[50]
In relation to most questions put to the Minister, the
Committee chose to conclude the matter on receiving the Minister’s advice.
However with regard to the repeal of the provisions that require employers to
facilitate access to remote locations,[51]
the Committee disputed the Minister’s explanation and continued to hold the view
that the amendments may be incompatible with the right to freedom of
association and the right to bargain collectively. The Committee report argues:
The committee notes the Minister’s statement, that transport
to a remote site ‘could cost upwards of $40,000 for a specially scheduled
flight for union officials.’ The committee notes that under the Act an occupier
is obliged to provide transport only if to do so ‘would not cause the occupier
undue inconvenience.’ The committee further notes that under the Act the
occupier is entitled to charge the permit holder a fee ‘provided that the fee
is no more than what is necessary to cover the cost to the occupier of
providing such transport’.
Accordingly it is not clear that there is an obligation on an
employer to provide the specially scheduled flight or to incur similarly high
costs in providing transport.
The committee considers that the amendments may be
incompatible with the right to freedom of association and the right to bargain
collectively.[52]
A final point to note is that some of the right of entry provisions
being amended in this Part (for example items 26, 29, 30
and 33) only commenced operation in January 2014 and therefore
their likely impact at the time of introduction in the previous Bill was not known.
It would seem these amendments are more a reflection of the Government’s
acceptance of the strong opposition to their introduction by employer groups, as
evidenced by the submissions to the Senate Committee inquiries into both this
and the previous Bill.
The Bill is unusual, both in title and content, being a
replica of the parts of an earlier Bill that failed to gain support from crossbench
Senators. While the views of the crossbenchers are not clear at this stage, the
Government has expressed optimism about further constructive negotiations with
that group to secure passage of the Bill through Parliament.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. The
Bill amended by the Senate became the Fair Work Amendment Act
2015, accessed 21 December 2015. That Act received Royal Assent on 26
November 2015 and all provisions apart from those relating to unclaimed moneys
came into effect the following day.
[2]. Fair
Work Act 2009, accessed 7 January 2016.
[3]. Fair
Work Act Review, Towards
more productive and equitable workplaces: an evaluation of the Fair Work
legislation (the 2012 Review), Department
of Education, Employment and Workplace Relations (DEEWR), Canberra, 15 June 2012,
accessed 6 January 2016.
[4]. Liberal
Party of Australia and the Nationals, The
Coalition’s policy to improve the Fair Work Laws, Coalition policy
document, Election 2013, accessed 8 January 2016.
[5]. The
term ‘modern award’ is dealt with in Part 2.3 of Chapter 2 of the Fair Work
Act. Modern awards are awards that have come into effect since January 2010
as part of the award rationalisation process.
[6]. Parliament
of Australia, ‘Fair
Work Amendment Bill 2014 homepage’, Australian Parliament website, accessed
27 January 2016.
[7]. Fair
Work Act Review, op. cit. When it introduced the Fair Work Act in 2008,
the then Labor Government undertook to conduct a post‑implementation
review within two years of its full implementation on 1 January 2010. The
final report of that review (the 2012 Review), was released on 2 August 2012.
[8]. M
Neilsen, Fair
Work Amendment Bill 2014, Bills digest, 52, 2013–14, Parliamentary
Library, Canberra, 2014, accessed 4 January 2016.
[9]. Senate Education and Employment Legislation Committee, Fair
Work Amendment Bill 2014 [Provisions], 5 June 2014,
The Senate, Canberra, accessed 4 January 2016.
[10]. A
greenfields agreement is a form of enterprise agreement that can be made under
Part 2-4 of the Fair Work Act. It is an agreement relating to
a genuine new enterprise that the employer (or employers) are establishing,
where the employer has not yet employed any of the employees who will be
necessary for the normal conduct of that enterprise and will be covered by the
agreement (sections 172(2)(b), (3)(b), (4)). The crossbenchers also obtained
further amendment of the measures to do with greenfields agreements. The
original Bill enabled employers to take their proposed greenfields agreements
to the FWC for approval if no deal had been reached within a ‘negotiating
period’ of three months. The crossbenchers extended the negotiating period to
six months. ‘Senate passes greenfields agreement changes’, Workplace express,
13 October 2015, accessed 8 January 2016.
[11]. See
the key
amendment that removed large sections of the Bill, accessed 21 December
2015.
[12]. Australia,
Senate, Journals,
120, 2015–16, p. 3222, accessed 21 December 2015. See also: ‘Senate
passes greenfields agreement changes’, op. cit.
[13]. K
Andrews (Assistant Minister for Science), ‘Second
reading speech: Fair Work Amendment (Remaining 2014 Measures) Bill 2015’, House
of Representatives, Debates, 3 December 2015, p. 14646, accessed
6 January 2016.
[14]. Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Remaining 2014
Measures) Bill 2015, The Senate, Canberra, accessed 4
January 2016.
[15]. Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment Bill 2014, The Senate, Canberra,
accessed 4 January 2016.
[16]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 2 of 2014, The Senate, Canberra, 5 March 2015, p. 7,
accessed 4 January 2016.
[17]. Australian Labor Party (ALP), Dissenting report, Senate Education and Employment Legislation Committee, Fair
Work Amendment Bill 2014 [Provisions] The Senate, Canberra,
p. 33, accessed 4 January 2016.
[18]. Australian Greens, Dissenting report, Senate Education and
Employment Legislation Committee, Fair
Work Amendment Bill 2014 [Provisions] The Senate,
Canberra, accessed 4 January 2016.
[19]. Australian
Industry Group, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the Fair
Work Amendment (Remaining 2014 Measures) Bill 2015, December 2015,
accessed 4 January 2016.
[20]. Australian
Federation of Employers and Industries, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the Fair
Work Amendment (Remaining 2014 Measures) Bill 2015, December 2015,
accessed 4 January 2016.
[21]. Ibid.
[22]. Australian
Council of Trade Unions, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the Fair
Work Amendment (Remaining 2014 Measures) Bill 2015, December 2015, p.
18, accessed 4 January 2016.
[23]. Ibid.,
p. 28.
[24]. Explanatory
Memorandum, Fair Work Amendment (Remaining 2014 Measures) Bill 2015, p.
iii, accessed 5 January 2016.
[25]. The
Statement of Compatibility with Human Rights can be found at pages v–xv of the
Explanatory Memorandum to the Bill.
[26]. Parliamentary
Joint Committee on Human Rights, Tenth
report of the 44th Parliament, The Senate, Canberra, 26 August 2014,
pp. 146–163, accessed 8 January 2016.
[27]. Ibid.
There is further discussion on the Committee report in the Key issues and
provisions section below.
[28]. Explanatory
Memorandum, Fair Work Amendment (Remaining 2014 Measures) Bill 2015, op.
cit., p. 4.
[29]. Fair Work Regulations 2009,
accessed 9 January 2016.
[30]. Subsection
202(4) of the Fair Work Act. See also B Creighton and A Stewart, Labour
law, 5th edn, Federation Press, Sydney, 2010, p. 313.
[31]. Section
203 sets out the requirements for flexibility terms in enterprise agreements.
It includes amongst other things that the flexibility term must identify the
terms of the enterprise agreement that may be varied by an IFA, a requirement
that an employee and employer genuinely agree to the arrangement, a requirement
that the employer ensure that an employee is better off overall under any IFA
that may be made under the flexibility term and that any such IFA may be
terminated by the employer or employee on up to 28 days’ notice—or by agreement
at any time.
[32]. B
Creighton and A Stewart, op. cit.
[33]. Explanatory
Memorandum, Fair Work Amendment (Remaining 2014 Measures) Bill 2015, op.
cit., p. 5.
[34]. Ibid.,
p. 5. Further detail is provided under the Comment heading below.
[35]. Ibid.,
p. 8.
[36]. Ibid.,
p. 9.
[37]. Ibid.,
p. 9. See Comment below.
[38]. Ibid.
[39]. Fair
Work Act Review, op. cit., p. 109.
[40]. Parliamentary Joint Committee on Human Rights, op.
cit., p. 151.
[41]. Australian
Workers Union, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the Fair
Work Amendment (Remaining 2014 Measures) Bill 2015, December 2015,
accessed 4 January 2016.
[42]. See items 5, 9, 13 and 17 described above.
[43]. Australian
Council of Trade Unions, op. cit., p. 21
[44]. See
A Holmes, Fair
Work Amendment Bill 2013, Bills digest, 118, 2012–13, Parliamentary
Library, Canberra, 2013, p. 8.
[45]. S O’Neill, M Neilsen and M Goodwin, Fair Work Bill 2008, Bills digest, 81, 2008–09, Parliamentary
Library, Canberra, 2009, accessed 8 January 2016.
[46]. Liberal
Party of Australia and the Nationals, The
Coalition’s policy to improve the Fair Work Laws, op. cit.
[47]. TCF stands for textile,
clothing and footwear.
[48]. Explanatory
Memorandum, Fair Work Amendment (Remaining 2014 Measures) Bill 2015, op.
cit., p. 17.
[49]. Australian
Council of Trade Unions, op. cit., p. 26.
[50]. Parliamentary Joint Committee on Human Rights, op. cit.,
pp. 154–161.
[51]. Sections 521A to 521D, proposed to be repealed by item
33, Schedule 1 of the Bill.
[52]. Parliamentary Joint Committee on Human Rights, op. cit., p.
157.
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