The Coalition Government has taken its first step to introduce business friendly industrial relations changes to greenfields enterprise agreements, right of entry and protected industrial action.
On 27 February 2014 the Federal Government introduced the Fair Work Amendment Bill 2014 (the Bill) into the Australian Parliament. The Bill is intended to implement some aspects of the Coalition’s Policy to Improve the Fair Work Laws, and specifically to address several of the 2012 recommendations of the Fair Work Review Panel.
The main changes are as follows:
Greenfields Enterprise Agreements
The Bill would make two major changes to the process of negotiating greenfields enterprise agreements, which can only be made between an employer and one or more unions.
The first change is that the “good faith bargaining requirements” that currently apply to bargaining representatives negotiating other kinds of enterprise agreements would also apply to negotiations for greenfields agreements.
The second change is that employers would have the option of setting union bargaining representatives a three month deadline for negotiations. If no agreement has been reached when the three month period expires, the employer would be able to apply to the Fair Work Commission (FWC) to approve the agreement. The FWC would need to be satisfied that the agreement provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.
Right of Entry
The Bill would repeal many of the changes to right of entry provisions made by the previous Government.
Union officials who enter employers’ premises to hold discussions would again have to comply with reasonable requests to use a particular room or area, and employers would no longer have to facilitate accommodation or transport for unions to enter remote sites.
The Bill would also add a new restriction preventing officials of a union from entering a site unless either the union is covered by an enterprise agreement that applies to the site, or a member or prospective member of the union who works on site invites the union to attend and hold discussions.
The FWC would be given additional powers to administer and handle disputes about right of entry matters.
The Bill would effectively overturn current provisions that allow unions to obtain a ballot to approve industrial action even before bargaining has commenced. If employees do not wish to bargain, unions would have to obtain orders from the FWC that effectively require bargaining to begin by obtaining a majority support determination before they can take the first steps towards industrial action.
The Bill would also make other minor changes to the Fair Work Act that would nonetheless have significant effects. These include changes to individual flexibility agreements, replacing provisions that have been interpreted as requiring that annual leave loading be included when accrued leave is paid out on termination, expressly allowing the FWC to dismiss unfair dismissal applications without holding a hearing in certain circumstances, and providing that employees cannot take or accrue leave when they are absent from work and are receiving workers’ compensation payments.
What happens next?
Whilst the Bill is an important first step, it will be some time before it passes into law. The Opposition and some minor parties are on record as opposing many aspects of the government’s policy, so it is very unlikely that the law will be changed until after the Senate changes on 1 July 2014, at the very earliest. Nonetheless employers should be alert to proposed changes that might affect their businesses, particularly where the changes will affect bargaining strategy or workforce planning through the middle of 2014.
The Fair Work Amendment Bill 2014 as introduced into the House of Representatives.
The Explanatory Memorandum to the Fair Work Amendment Bill 2014.