The Senate has passed a number of amendments to the Fair Work Act 2009, however the Government has been unable to attract sufficient support from cross-benchers for several key proposed changes, which have now been omitted from the Fair Work Amendment Bill 2014.
The passed amendments are significant and include:
- establishing a new process for negotiation of greenfields agreements by extending good faith bargaining to the negotiation of these agreements and providing an optional six month negotiation timeframe for the parties to reach agreement (following which an employer can apply to the Fair Work Commission (Commission) for approval of its agreement);
- providing new requirements to prevent employees from taking protected industrial action unless bargaining has commenced (either voluntarily or because a majority support determination has been made);
- imposing an obligation on employers to discuss with employees a refusal to grant an extension to unpaid parental leave.
Below is a summary of the changes opposed by the Senate, and which have been omitted from the Bill:
- amending flexibility terms in all enterprise agreements (including to permit non-monetary benefits being taken into account in assessing whether the employee is better off overall under the terms of an individual flexibility arrangement);
- restoring arrangements relating to union right of entry that were amended in 2013 (such as reinstating the pre-existing rule that union officials comply with reasonable requests by employer to hold discussions in a particular room);
- preventing transfer of business provisions from applying in circumstances where the employee (on his or her own initiative) becomes employed by an associated entity of his or her former employer;
- reconciling inconsistencies across jurisdictions to make clear that an employee is not entitled to take or accrue leave while they are absent from work and receiving workers’ compensation;
- giving the Commission greater powers to dismiss unfair dismissal applications without a hearing or conference if, for example, the application has no reasonable prospects of success.
If the Government accepts the amendments, the Bill will be remitted to the House of Representatives to vote on. Employers, particularly those whose enterprise agreements are coming up for renewal, should eagerly watch this space.
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