Individual Flexibility a Focus in the New Fair Work Amendment Bill 2014

As promised, the Federal Government has introduced the Fair Work Amendment Bill 2014 (bill) into Parliament, signalling significant changes for Greenfields enterprise agreements and union rights. The Bill is a mix of different initiatives and contains changes inspired by Labor’s Fair Work Act Review, unravelling recent changes made by the former Labor Government and some Independent Coalition Policy objectives. Other employment areas covered in the bill include unfair dismissal, transfer of business laws, annual leave loading and Individual Flexibility Agreements.

As foreshadowed, the most significant proposed amendments relate to more industrialised workforces such as the negotiation of Greenfields enterprise agreements, some restrictions on protected industrial action and modifications to right of entry laws. In particular, key proposed changes include the following:

Leave  

• Clarification that an employer is not obliged to pay annual leave loading on termination of employment under the National Employment Standards (NES). An award or enterprise agreement may still require this.
• A request for the extension of parental leave may not be refused without first giving the employee a reasonable opportunity to discuss it.
• Employees do not accumulate, and cannot take leave while absent from work and in receipt of workers compensation.

Unfair Dismissals

• Where an application to the Fair Work Commission (FWC)  has no reasonable prospects of success or the former employee has unreasonably failed to attend, comply with directions or discontinue the application which has been settle, the FWC may dismiss an unfair dismissal application without a hearing.

Transfer of Business

• The transfer of business provisions will not apply to the transfer of an employee between associated entities if the employee pursued the transfer at their own initiative.

Individual Flexibility Agreements (IFAs)

• Awards and enterprise agreement (EBA) IFAs must provide for 13 weeks’ notice of termination instead of the current 4 weeks’ notice.
• Employers will not breach an award or EBA if they reasonably believe that the employee would be better off under an IFA.
• Clarification that in assessing whether employees are better off under the IFA than the award or EBA non-monetary benefits are taken into consideration.
• To stop unions from interfering in new enterprise agreements by restricting their scope, IFA provisions within EBAs must allow variations to arrangements for when work is performed; overtime; penalty rates; allowances; and leave loading.

Greenfields EBAs  

• Unions will only be allowed to act as a bargaining representative for a greenfields EBA if the employer agrees to bargain with them.
• A greenfields EBA must still be negotiated with at least one union for a minimum of 3 months (known as the 'notified negotiation period').  After the conclusion of the 'notified negotiation period', the employer can apply to FWC for approval of the EBA – even if the union/s do not agree. The good faith bargaining and related obligations no longer apply on expiry of the 'notified negotiation period'.
• The FWC has to approve the greenfields EBA if it meets the Better Off Overall Test and provides for pay and conditions, considered on an general basis, that are consistent with the usual pay and conditions within the relevant industry for equivalent work – which can include geographic considerations.
• The greenfields EBA is taken to be made when application is made to the FWC.

Protected Action

• Employees are banned from initiating protected industrial action to force an employer to agree to bargain.

Right of Entry  

• A union official is only permitted to enter premises for discussions with employees if the union is party to an applicable EBA, or if there is no EBA, where an employee has invited them. To avoid disputes, a union official can apply for an anonymous 'invitation certificate' from FWC.
• A union official will no longer be able to insist on conducting conferences in a lunch room. Instead, the union official must comply with reasonable requests to conduct interviews or discussions in a particular room.

Next steps

The possibility of another amendment bill addressing policy objectives not covered in this bill has also been raised. 

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