NECA Group

News & Views

23rd January 2014

Fair Work Act Amendments Commenced on January 2014

 
A number of amendments made to the Fair Work Act 2009 began to operate from 1 January 2014.  A summary of those changes follows:
 
1. Awards and Enterprise Agreements to require consultation about changes to regular rosters and ordinary hours of work
 
A change to the Fair Work Act 2009 requires all modern awards, including the Electrical, Electronic and Communications Contracting Award 2010, to include a term requiring employers to consult with their employees about changes to their regular roster or ordinary hours of work.  The term which  took effect from 1 January 2014 is as follows:
 
“Consultation about changes to rosters or hours of work
 
(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer
     must consult with the employee or employees affected and their representatives, if any, about the proposed
     change
 
(b) The employer must
 
(i)    Provide to the employee of employees affected and their representatives, if any, information about the
       proposed change (for example, information about the nature of the change to the employee’s regular
       roster or ordinary hours of work and when that change is proposed to commence);
(ii)   Invite the employee or employees affected and their representatives, if any, to give their views about
       the impact of the proposed changes (including any impact in relation to their family or caring
       responsibilities); and
(iii)  give consideration to any views about the impact of the proposed change that are given by the
       employee or employees concerned and/or their representatives, if any
 
(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or
     unpredictable working hours
(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and
     notice requirements.”
 
A copy of the amended Award can be obtained from the Fair Work Commission website www.fwc.gov.au/awards 
 
The change to the Award does not affect employers covered by a currently operating enterprise agreements.  However enterprise agreements submitted for approval after 1 January 2014 must contain a consultation term that includes an obligation to consult about changes to regular rosters and ordinary hours of work that is similar to the term inserted in all modern awards.
 
In another amendment to the Act affecting Awards, the modern awards objective will require the Commission to take into account the need to provide additional remuneration for employees working: overtime; unsocial, irregular or unpredictable hours; weekends or public holidays, or shifts.    This does not mean that Award penalty rates will increase.  In fact, some industries (notably retail and hospitality) are advocating a reduction in or abolition of some penalties because that do not reflect current working conditions in those industries.
 
2. Complaints of Workplace Bullying to be heard by Fair Work Commission
 
From 1 January 2014, a worker in a constitutionally covered business (not a partnership or sole trader in NSW)  who reasonably believes that he or she has been bullied at work can apply to the Commission for an order to stop the bullying. The Commission must start to deal with the application within 14 days.  The Commission can either dismiss the complaint or make any order it thinks appropriate to stop the bullying.  The Commission cannot make a monetary order (an order imposing a penalty or awarding compensation), nor can it make an order if there is no risk of the bullying continuing (the perpetrator has resigned for example).  An employer or business that breaches an Order may be liable for a civil penalty.
 
The definition of worker includes an employee; a contractor or subcontractor; an employee of a contractor or subcontractor; an employee of a labour hire company assigned to work in the person’s business or undertaking; an outworker; an apprentice trainee or student gaining work experience and a volunteer.
 
Reasonable management action taken in a reasonable manner is not bullying.
 
3. Consent arbitration of general protections (adverse action) & unlawful termination disputes
 
From 1 January 2014, an applicant can, with the employer’s agreement and within 14 days after the day the Commission issues a certificate in general protections dismissal dispute or an unlawful termination dispute, have the dispute arbitrated by the Commission. This consent arbitration is an alternative to a court application.
 
4. Right of entry
 
From 1 January 2014, the Commission has greater capacity to deal with disputes about the frequency of visits to workplaces by permit holders, and the Commission may deal with disputes about the new arrangements for provision of transport and accommodation to permit holders at remote workplaces.