e m p l o y m e n t
m a t t e r s
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s p e c i a l
e d i t i o n
Update on changes to the Fair Work Act and
other legislative changes affecting employment
2013 has been a year where changes to industrial regulation have been
announced almost weekly. The Employment Relations team takes a look at the
latest wave of amendments.
Fair Work Amendment Act 2013 (Cth)
The March edition of Employment
Matters discussed proposed changes to
the Fair Work Act 2009 (Cth). The Fair
Work Amendment Act 2013 (Cth) (FW
Amendment Act) was passed on 27 June
2013 following Government negotiations
with the Greens and lower house
independents. The Act received Royal
Assent on 28 June 2013, but is currently
awaiting proclamation.
The majority of the amendments were
discussed in the previous edition of
Employment Matters, and include the
expansion of the right to request flexible
working arrangements; a requirement
to consult over changed working hours;
extended concurrent parental leave; union
rights of entry changes; inclusion of penalty
rates in the modern award objective; and
a new anti-bullying jurisdiction for the Fair
Work Commission (FWC).
The FW Amendment Act also includes
changes affecting registered organisations,
and has created a FWC consent
arbitration jurisdiction for unlawful
dismissal claims. These are discussed in
more detail in this edition of Employment
Matters.
Employment Matters
Changes commencing on 1 January
2014
Changes commencing on or before
29 December 2013
A number of changes to the Fair Work
Act will not start until next year, including
the requirement to consult with workers
on changed hours, the inclusion of penalty
rates in the modern awards objective, a
new deadline for rules relating to financial
disclosure for registered organisations and
the consent arbitration jurisdiction for the
FWC.
Some of the amendments in the FW
Amendment Act are due to commence
on a “day to be fixed by proclamation” or
six months after the date of Royal Assent.
While the Act has received Royal Assent,
it has not yet been proclaimed, meaning
that some amendments will commence
either on or before 29 December 2013,
depending on what date proclamation
occurs.
Also commencing on 1 January 2014 is
the FWC’s new bullying jurisdiction. The
FWC will be empowered to make orders
to “stop” workplace bullying, but not order
that compensation be paid. However, the
contravention of a “stop bullying” order is
a civil remedy provision, and can result in
large penalties. The definition of bullying
in the amendments is very similar to the
definition in the draft Code of Practice under
the model Work Health and Safety Act. This
was discussed in detail in the June edition of
Safety Matters.
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The expanded right to request flexible
working arrangements and the expansion
of concurrent parental leave and “no
safe job” leave, as discussed in the March
edition, falls into this category.
July 2013
Consent arbitration of general
protections dismissal claims
From 1 January 2014, the FWC will be
able to arbitrate general protections
disputes involving dismissals, where the
parties consent. This amendment was put
in the amending bill at a late stage, and it is
not clear what prompted the government
to include it, though it seems to have been
generally welcomed.
While the FWC will be able to arbitrate
general protection dismissal claims, they
are still required to first deal with the
matter in a non-arbitration manner, such
as conciliation or mediation. The FWC
must also continue to issue a certificate
that all reasonable attempts to resolve the
dispute other than arbitration have been,
or are likely to be, unsuccessful.
Once a certificate is issued, the dismissed
employee will have 14 days to either:
•
make a general protections or
unlawful termination court application
•
elect not to proceed further with the
dispute
•
with the consent of their former
employer, agree that the FWC
conduct consent arbitration to
resolve the dispute.
The employer essentially has a right of
“veto” over whether a dispute will be put
before the FWC or the court systems.
Employment Matters
In conducting consent arbitration, the FWC
has its usual powers, and can make orders
to reinstate the dismissed employee, compel
the employer to compensate the employee
(with no cap on that amount) or make
orders about the continuity of employment
and/or service. The FWC however cannot
order an employer to pay penalties, unlike in
a court application.
Once an employee has elected to have
the FWC arbitrate the dispute, no general
protections court application can be made
concurrently. Further, a party can only
appeal in circumstances similar to those in
an unfair dismissal claim, where the FWC
determines it is in the public interest.
Financial disclosure requirements for
registered organisations
The FW Amendment Act has also extended
the deadline for registered unions or
employer associations to update their rules
to be compliant with respect to financial
disclosures to 1 January 2014. Previously,
organisations were meant to have updated
their rules by 1 July 2013.
While the requirement to have rules
compliant with the Act does not apply until
next year, the FW Amendment Act requires
registered organisations to make certain
disclosures for the period 1 July 2013 to 31
December 2013, even in the absence of any
rules.
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The amendments also make it clear that
the payment of remuneration to officers
of an organisation, or reimbursements for
that officer’s reasonable expenses, are not
required to be disclosed as a “payment to
a related party”.
Migration Amendment (Temporary
Sponsored Visas) Act 2013 (Cth)
The Act was passed by both houses of the
federal parliament on 28 June 2013, and
was given Royal Assent on 29 June 2013.
The Act has added a requirement for
approval to nominate a sponsored
worker that the employer-sponsor has
undertaken “labour market testing” in the
previous four months. Previously, labour
market testing was not compulsory.
As a part of labour market testing, the
employer needs to provide evidence of
the testing and notify the Department
of Immigration and Citizenship of any
redundancies or retrenchments which
have occurred in the past four months.
The sponsor also needs to provide
evidence that there are no suitably
qualified and experienced citizens,
permanent residents or other temporary
visa holders readily available to take up
the position. There are some skills and
occupational exemptions as specified
by legislative instrument, and a “major
disaster” exception.
July 2013
The requirements for labour market
testing will commence either on or before
30 December 2013, depending on when
the Act is proclaimed.
Other changes will commence
immediately. Previously, when a 457
visa-holder lost their job, they had 28 days
to find a new job before being in breach
of their visa conditions. This has been
extended to 90 days, and applies to all
current and future 457 visa-holders.
The Act also appoints Fair Work
inspectors as inspectors for the purposes
of the Migration Act, giving them the
power to monitor and investigate
compliance with sponsorship obligations.
The inspectors have the power to ensure
that overseas workers are being paid
market salary rates and are working in
their nominated occupation.
When these measures were first
announced at the beginning of June,
the Department of Immigration and
Citizenship had only approximately 32
inspectors nationally. Now that the
power to inspect has been extended to
Fair Work inspectors, there will be over
300 inspectors exercising inspection and
compliance powers under the Migration
Act. This indicates a “crack-down” on
exploitative employer-sponsors and visaholders that are in breach of their visa
conditions.
Employment Matters
Sex Discrimination Amendment (Sexual
Orientation, Gender Identity and
Intersex Status) Act 2013 (Cth)
On 28 June 2013, both houses of
parliament passed this Act, which amends
the Sex Discrimination Act, to replace
“marital status” with “sexual orientation,
gender identity, intersex status, marital
or relationship status” as a protected
attribute. There are some exemptions for
voluntary bodies, competitive sporting
activities and religious organisations, but
these do not extend to the provision of
Commonwealth-funded aged care or aged
care accommodation.
The amendments will commence either on
or before 29 December 2013, as the Act
has received Royal Assent, but is awaiting
proclamation.
Public Interest Disclosure Bill 2013
(Cth)
This Bill was passed by both houses of
federal parliament on 26 June 2013. The
Bill is not yet law, however, as it has not
received Royal Assent. It is unknown when
the provisions will commence.
The Bill extends adverse action protection
to federal public servants who “blow
the whistle” on wrongdoing within their
department or agency. Essentially, the Bill
makes whistleblowing a “workplace right”
which is protected by the Fair Work Act
2009 (Cth).
3
The Bill gives whistle-blowers protection
from “reprisals”, being an act or omission
which causes detriment to a current
or future whistle-blower. Detriment
is defined as including dismissal, injury,
alteration to an employee’s position
to their detriment, or discrimination
between government employees.
Reprisals carry penalties of up to $20,400.
Under the Bill, the Federal Court
or Federal Circuit Court can order
compensation, injunctions, and apologies
for employees who suffer, or are likely
to suffer, a reprisal from their employer,
as well as reinstatement if they are
dismissed, or a combination. The Bill
prevents “double dipping”, however,
stating that an employee cannot make
a general protections application at the
same time as applying for a “reprisal”
remedy.
With so many changes just around the
corner affecting employers and employees
alike, employers should ensure they
are up to speed. In particular, policies
and practices relating to workplace
bullying, consultation, flexible working
arrangements, and 457-visa workers
should be reviewed.
If you have any concerns about how
these legislative changes will impact your
business, please contact a member of the
Employment Relations team for advice.
July 2013
[ p u b l i c a t i o n
n a m e ]
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Employment Matters
4
July 2013