The Federal Coalition has stated that its proposed changes will be introduced to Federal Parliament within three months of the Federal Coalition taking power.
What are the Federal Coalition's major proposals?
The Coalition has indicated that it intends to:
- generally retain the "Fair Work" framework introduced by the current Labor Federal Government, including the Fair Work Commission ("FWC");
- adopt some recommendations from the Fair Work Review Panel report (see our earlier article ) which have not been adopted by the current Federal Government. These recommendations include clarification on the circumstances in which annual leave loading is payable on termination of employment, encouraging the expedition of a national long service leave scheme, and recommending changes to the current "better off overall test" to appropriately account for non-monetary benefits;
- initiate a Productivity Commission review into the operation and impact of the Fair Work laws, and ask that body to make recommendations on improving its operation, bearing in mind the need to ensure employees are protected and the need for businesses to be able to prosper and employ;
- introduce a paid maternity leave scheme that will entitle mothers to 26 weeks' paid leave, at the mother's full replacement wage or the national minimum wage (whichever is greater), up to a maximum total amount of $75,000. In contrast to the existing paid parental leave scheme, superannuation contributions will also be made. Also, the payments will be made directly by the Federal Government, and not through employers as is the case with the existing paid parental leave scheme;
- support Labor's proposed workplace bullying changes (see our earlier article) but restrict access to the FWC to those workers who have first sought help, advice or assistance from a work health and safety regulator. Also, the changes will be expanded to include the conduct of union officials towards workers and employers;
- make no changes to unfair dismissal or transfer of business laws;
- re-establish the Australian Building and Construction Commission, which will administer a national code and guidelines, and abolish the Fair Work Building Construction unit;
- create a Registered Organisations Commission to act as a watchdog over registered organisations, such as unions and employer associations, and which will be independent to the Fair Work Ombudsman ("FWO"). Related proposals include:
- imposing duties and penalties on officers of registered organisations equivalent to those imposed on company directors; and
- increasing financial disclosure obligations by requiring registered organisations to provide each member with a "written simple, one page pie-chart breakdown of their yearly expenditure on particular items, such as labour, advertising, capital, operating and political donations each year";
- assist small businesses to improve their understanding of the Fair Work laws through the FWO, and encourage greater compliance and education by providing potential immunity from FWO penalties for small business employers. Immunity will be provided when a small business employer pays or applies the wrong employment conditions, provided that the error is not deliberate and the employer previously sought FWO advice and help on the same issue;
- pare back existing union rights of entry to laws modelled on the pre-Fair Work regime. This will involve allowing unions to seek entry to a workplace if they:
- are a party to an enterprise agreement which applies to the workplace or they are a bargaining representative seeking in good faith to make an agreement to cover the workplace; and
- there is evidence that union members in the workplace have requested their presence.
Where the workforce is covered by a modern award or the enterprise agreement in place does not cover the union, then the union will need to demonstrate that it has (or had) a lawful representative role in that workplace and there is evidence that workers/members have requested their presence.
Unions will still be able to enter a workplace to investigate breaches, to represent a member in a dispute over a modern award or agreement, or to investigate work health and safety breaches. The FWC will have the power to determine disputes over workplace visit issues;
- ensure that enterprise agreements cannot restrict the use of individual flexibility arrangements, though at the same time retaining the existing better off overall test, and requiring the notice period for terminating such arrangements to be extended to 13 weeks. Australian Workplace Agreements will not be reintroduced;
- provide that before an enterprise agreement is approved, unions will need to convince the FWC that their claims will not adversely affect productivity, and the FWC will need to be satisfied that parties have considered and discussed ways to improve productivity;
- require negotiations over enterprise agreements for new projects (greenfields agreements) to be conducted in good faith and completed within three months of them commencing, after which the FWC will have the power to make and approve the agreement if it is satisfied that it passes the better off overall test and is consistent with prevailing industry standards;
- ensure that workers who are underpaid receive interest on the unpaid back pay held for them by the FWO, which is currently kept by the Federal Government;
- provide that protected industrial action can only occur if the FWC is satisfied that there have been genuine and meaningful talks between workers and businesses at the workplace, and that the claims made by both parties are "sensible and realistic"; and
- review the need for the recently established Road Safety Remuneration Tribunal, while retaining other protections such as the National Heavy Vehicle Regulator (see our earlier articles– 19 September and 10 October 2012).
What do employers need to do?
Employers will need to watch this space. If there is a change of Federal Government at the 14 September 2013 Federal election, we now have more guidance on what a new industrial relations landscape may look like. While the Federal Coalition has stated that it has no plans to make any other changes to Fair Work laws other than those outlined in the policy document, as always, the devil may be in the detail …
Martin Dunne +61 2 9391 3211 firstname.lastname@example.org
Shawn Skyring (North Ryde) +61 2 9804 5732 email@example.com
David Thompson +61 3 8602 9252 firstname.lastname@example.org
Darren Miller +61 8 9488 1300 email@example.com
Sarah Sealy +61 3 6231 0131 firstname.lastname@example.org
Chris Osborne +61 8 8924 2600 email@example.com