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Fair Work Amendment Bill 2013

Introduced into the House of Representatives on 21 March 2013

Portfolio: Employment and Workplace Relations

Overview

1.45      This bill seeks to amend the Fair Work Act 2009 to give effect to a number of recommendations made in the June 2012 report of The Fair Work Act Review Panel. A number of recommendations made by the Panel have already been implemented by the Fair Work Amendment Act 2012. The bill also implements a number of other reforms. The principal amendments the bill makes are to:

• introduce new family friendly arrangements, including expanding the right for pregnant women to transfer to a safe job, providing further flexibility in relation to concurrent unpaid parental leave, ensuring that any special maternity leave taken will not reduce an employee’s entitlement to unpaid parental leave and expanding access to the right to request flexible working arrangements to more groups of employees;
• require employers to consult with employees about the impact of changes to regular rosters or hours of work, particularly in relation to family and caring responsibilities;
• amend the modern awards objective to require that the Fair Work Commission (FWC) takes into account the need to provide additional remuneration for employees working unusual hours;
• give the FWC capacity to deal with disputes about: the frequency of visits to premises and accommodation and transport arrangements; and expressly confer on the FWC the function of promoting cooperative and productive workplace relations and preventing disputes;
• provide for venues where interviews and discussions may be held between an occupier and permit holder;
• facilitate accommodation and transport arrangements for permit holders in remote areas and to provide for limits on the amounts that an occupier can charge a permit holder.

1.46      The Bill will also amend the Fair Work Act 2009 to give effect to the government’s response to the House of Representatives Standing Committee on Education and Employment’s report Workplace Bullying ―We just want it to stop. The bill will allow a worker who has been bullied at work in a constitutionally-covered business to apply to the FWC for an order to stop the bullying; require the FWC to start dealing with an application for an order to stop bullying within 14 days; and enable the FWC to make any order it considers appropriate (other than an order for payment of a pecuniary amount) to stop the bullying.[1]

Compatibility with human rights

1.47      The bill is accompanied by a self-contained statement of compatibility which provides a detailed and helpful explanation of the rights which the bill is said to promote. The statement of compatibility lists the following rights:

• the right to maternity leave under article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 11(2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
• the rights of parents and children under articles 3, 5 and 18 of the Convention on the Rights of the Child (CRC) and article 5(b) of CEDAW;
• the right to freedom of association, including the right to form and join trade unions and the right of trade unions to function freely under article 22 of the International Covenant on Civil and Political Rights (ICCPR), article 8 of the ICESCR and the International Labour Organisation (ILO) Convention 87;
• the right to just and favourable conditions of work under article 7 of the ICESCR, including the right to fair wages, the right to safe and healthy working conditions, and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction under article 11(1) of CEDAW;
• the right to the enjoyment of the highest attainable standard of physical and mental health under article 12 of the ICESCR;
• the right to equality and non-discrimination in employment under articles 2(1) and 26 of the ICCPR, article 2 of the ICESCR, article 5(e)(i) and (ii) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), article 11 of CEDAW and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD);
• the right to a fair hearing under article 14 of the ICCPR; and
• the right to privacy and reputation under article 17 of the ICCPR. [2]

1.48      The statement of compatibility provides an analysis of each right and a description of how the amendments will promote its enjoyment. In general the amendments expand the rights protections afforded to employees in the workplace in accordance with international obligations under the UN human rights treaties and a number of other treaties, including International Labour Organisation conventions.

Civil penalty provisions

1.49      The statement of compatibility draws attention to proposed new section 789FG which provides that a person to whom an anti-bullying order applies 'must not contravene a term of the order'. A note states that this is 'a civil remedy provision' for the purpose of Part 4-1 of the Fair Work Act 2009. Part 4-1 of the Fair Work Act 2009 contains a detailed legislative scheme relating to civil remedy provisions, which are effectively civil penalty orders and sets out procedures for their enforcement. In previous reports the committee has drawn attention to its concerns that certain civil penalties may constitute criminal provisions for the purpose of article 14 of the ICCPR. As a consequence, the specific guarantees set out in article 14(2), 14(3) to (7), and 15 of the ICCPR may apply to such penalties and proceedings to enforce them.

1.50      It is not clear that an anti-bullying order in relation to an employment situation would involve a ‘criminal sanction’. However, there are a number of provisions in Part 4-1 of the Fair Work Act 2009 which do give rise to questions about whether the orders are 'criminal' for the purposes of human rights law.

1.51             The committee considers that the bill does not appear to give rise to any human rights concerns as it promotes the enjoyment of rights at and in relation to work.

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