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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK AMENDMENT BILL 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Honourable William Shorten MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
Outline
FAIR WORK AMENDMENT BILL 2013
OUTLINE
The Fair Work Act Review was carried out by a panel of three independent experts in response
to the Governments commitment to commence a post-implementation review of the Fair Work
Act 2009 (FW Act) within 2 years of its full implementation.
The Fair Work Act Review Panel (the Panel) completed its deliberations and delivered its report
- Towards more productive and equitable workplaces: An evaluation of the fair work legislation
(the Report) - in June 2012. In finding that the FW Act was broadly meeting its objectives and
did not require wholesale change, the Panel made a range of mainly technical recommendations
to improve the operation of the legislation without compromising productivity and fairness in the
workplace. The Office of Best Practice Regulation (OBPR) in the Department of Finance and
Deregulation confirmed the Report met the best practice regulation requirements.
The Fair Work Amendment Act 2012 (FW Amendment Act 2012) was passed by the Parliament
in December 2012 and implemented approximately one third of the recommendations of the
Panel for which there was broad consensus between the Government and workplace relations
stakeholders. These included amendments to unfair dismissal provisions, functions of the Fair
Work Commission (FWC) and a range of technical and clarifying amendments. The FW
Amendment Act 2012 also made amendments in relation to default superannuation schemes in
response to the Productivity Commissions Report into Default Superannuation Funds in
Modern Awards (Report No. 60).
The Fair Work Amendment Bill 2013 (the Bill) will implement several more of the Panels
recommendations and a number of reforms which reflect the Governments policy priorities. The
Bill has been developed following extensive consultation by Government with employer and
union stakeholders following the conclusion of the Fair Work Act Review.
The Bill will make amendments to:
introduce new family friendly arrangements, including expanding the right for pregnant
women to transfer to a safe job, providing further flexibility in relation to concurrent unpaid
parental leave, ensuring that any special maternity leave taken will not reduce an employees
entitlement to unpaid parental leave and expanding access to the right to request flexible
working arrangements to more groups of employees;
require employers to consult with employees about the impact of changes to regular rosters
or hours of work, particularly in relation to family and caring responsibilities;
amend the modern awards objective to require that the Fair Work Commission (FWC), when
ensuring that modern awards together with the National Employment Standards provide a
fair and relevant minimum safety net of terms and conditions, take into account the need to
provide additional remuneration for employees working overtime; unsocial, irregular or
unpredictable hours; working on weekends or public holidays; or working shifts;
give the FWC capacity to deal with disputes about the frequency of visits to premises for
discussion purposes;
Fair Work Amendment Bill 2013 1 Senate
Outline
provide for interviews and discussions to be held in rooms or areas agreed to by the occupier
and permit holder, or in the absence of agreement, in any room or area in which one or more
of the persons who may be interviewed or participate in the discussions ordinarily take meal
or other breaks and is provided by the occupier for that purpose;
facilitate, where agreement cannot be reached, accommodation and transport arrangements
for permit holders in remote areas and to provide for limits on the amounts that an occupier
can charge a permit holder under such arrangements to cost recovery;
give the FWC capacity to deal with disputes in relation to accommodation and transport
arrangements and ensure appropriate conduct by permit holders while being accommodated
or transported under an accommodation or transport arrangement;
enable the FWC to arbitrate general protections dismissal disputes and unlawful termination
disputes, where the parties consent;
deal with procedural matters relating to FWCs new consent arbitration jurisdiction in
relation to general protections dismissal disputes and unlawful termination disputes,
including new measures to limit appeals and provide for costs orders in certain
circumstances;
align the time limit for making an unlawful termination application with the time limit of
21 days that applies for making general protections dismissal and unfair dismissal
applications;
expressly confer on the FWC the function of promoting cooperative and productive
workplace relations and preventing disputes;
clarify the FWCs ability to conciliate, mediate, express opinions and make
recommendations when conducting conferences;
allow FWC Members to be concurrently appointed to positions under Commonwealth or
Territory laws by removing the requirement for such laws to provide for an office to be held
by an FWC Member;
make a number of minor technical amendments; and
amend the Fair Work (Registered Organisations) Amendment Act 2012 (ROA Act) to specify
the commencement of Part 2 of Schedule 1 of the ROA Act is 1 January 2014 (while
ensuring that relevant disclosures for the original period between 1 July 2013 and
31 December 2013 are still required), provide greater clarity and ensure consistency with the
ROA Act amendments in respect of disclosure of remuneration, and make related
consequential amendments to the ROA Act.
The Bill will also amend the FW Act to give effect to the Governments response to the House of
Representatives Standing Committee on Education and Employments report Workplace
Bullying We just want it to stop. The Bill will:
allow a worker who has been bullied at work in a constitutionally-covered business to apply
to the FWC for an order to stop the bullying (subject to limitations in relation to the Defence
Force, Australias security agencies and the Australian Federal Police);
adopt a definition of ,,bullied at work which is consistent with the definition of ,,workplace
bullying recommended by the Committee in its report, and the proposed Safe Work
Australia model Code of Practice: Preventing and Responding to Workplace Bullying;
Fair Work Amendment Bill 2013 2 Senate
Outline
require the FWC to start dealing with an application for an order to stop bullying within
14 days of the application being made; and
enable the FWC to make any order it considers appropriate (other than an order for payment
of a pecuniary amount) to stop the bullying.
The development of the Bill included extensive consultation with the National Workplace
Relations Consultative Council and their technical advisers through the Committee on Industrial
Legislation, and State and Territory government officials.
Fair Work Amendment Bill 2013 3 Senate
Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Fair Work Amendment Bill 2013
The object of the Fair Work Act 2009 (the FW Act) is to provide a balanced framework for
cooperative and productive workplace relations that promotes national economic prosperity and
social inclusion for all Australians. This Bill makes amendments to improve the operation of the
FW Act as explained below:
Family-friendly measures
The family-friendly amendments contained in Schedule 1 provide greater flexibility in working
arrangements for modern families. This includes greater flexibility in parental leave, increased
rostering protections and broader rights to request flexible working arrangements.
Protections for pregnant workers
The amendments contained in Schedule 1 are also aimed at ensuring the safety and wellbeing of
pregnant workers. This includes clarifying the operation of the special maternity leave provisions
and providing pregnant employees with less than 12 months service with the right to transfer to a
safe job.
Modern awards objective
Schedule 2 amends the modern awards objective set out in section 134 of the FW Act to require
that the FWC, when making or varying a modern award, takes into account the need to provide
additional remuneration for employees working overtime, unsocial, irregular or unpredictable
hours, working on weekends or public holidays, or working shifts.
Anti-bullying measure
The anti-bullying amendments are part of the Governments response to the House of
Representatives Standing Committee on Education and Employment report Workplace bullying
"We just want it to stop". Schedule 3 amends the FW Act to include a new Part 6-4B to enable a
worker who is bullied at work to apply to the Fair Work Commission (FWC) for an order to stop
the bullying. These amendments are limited in relation to the Defence Force, Australias security
agencies and the Australian Federal Police (AFP).
Right of entry
Schedule 4 amends Part 3-4 of the FW Act in relation to the location of discussions and
interviews, as well as transport and accommodation arrangements for the facilitation of entry to
premises in remote areas by permit holders. The Schedule also amends the FWCs dispute
Fair Work Amendment Bill 2013 4 Senate
Statement of Compatibility with Human Rights
settlement powers in relation to transport and accommodation arrangements and frequency of
entry to hold discussions.
Consent arbitration for general protections and unlawful termination
Schedule 4A amends the general protections and unlawful termination provisions to allow the
FWC to arbitrate general protections dismissal disputes and unlawful termination disputes,
where the parties consent. This will improve compliance by providing for a voluntary, low cost
FWC arbitration option as an alternative to court action.
Registered organisations
Schedule 6A amends the Fair Work (Registered Organisations) Amendment Act 2012 (ROA
Act) to specify the commencement of Part 2 of Schedule 1 of the ROA Act is 1 January 2014
(while ensuring that relevant disclosures for the original period are still required), provide greater
clarity and ensure consistency with the policy intention underpinning those ROA Act
amendments, and make related consequential amendments to the ROA Act.
Human Rights Implications
The Bill engages the following rights:
the right to maternity leave under Article 10(2) of the International Covenant on Economic,
Social and Cultural Rights (ICESCR) and Article 11(2) of the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW);
the rights of parents and children under Articles 3, 5 and 18 of the Convention of the Rights
of the Child (CRC) and Article 5(b) of the CEDAW;
the right to freedom of association, including the right to form and join trade unions and the
right of trade unions to function freely in Article 22 of the International Covenant on Civil
and Political Rights (ICCPR), Article 8 of the ICESCR and in the International Labour
Organisation (ILO) Convention 87;
the right to just and favourable conditions of work under Article 7 of the ICESCR, including
the right to fair wages, the right to safe and healthy working conditions, and the right to
protection of health and to safety in working conditions, including the safeguarding of the
function of reproduction under Article 11(1) of the CEDAW;
the right to the enjoyment of the highest attainable standard of physical and mental health
under Article 12 of the ICESCR;
the right to equality and non-discrimination in employment under Articles 2(1) and 26 of the
ICCPR, Article 2 of the ICESCR, Article 5(e)(i) and (ii) of the Convention on the
Elimination of All Forms of Racial Discrimination (CERD), Article 11 of the CEDAW and
Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD);
the right to an effective remedy under Article 2(3) of the ICCPR;
the right to a fair hearing under Article 14 of the ICCPR; and
the right to privacy and reputation under Articles 17 and 14 of the ICCPR.
Fair Work Amendment Bill 2013 5 Senate
Statement of Compatibility with Human Rights
Right to maternity leave
Article 10(2) of the ICESCR states that special protection should be accorded to mothers during
a reasonable period before and after childbirth, with working mothers accorded paid leave or
leave with adequate social security benefits during such a period.
Article 11(2) of the CEDAW requires that State Parties take appropriate measures to introduce
maternity leave with pay or with comparable social benefits without loss of former employment,
seniority or social allowances.
Article 18 of the CRC sets out that State Parties shall use their best efforts to ensure recognition
of the principle that both parents have common responsibilities for the upbringing and
development of the child.
Family-friendly measures
Under the FW Act an eligible employee is entitled to up to 12 months of unpaid parental leave.
In general, to be eligible for unpaid parental leave an employee must have completed at least
12 months of continuous service before the expected date of birth of the child. An employee who
is not fit for work while pregnant, for reasons including that she has a pregnancy-related illness,
is also entitled to unpaid special maternity leave, however this counts as part of her entitlement
to 12 months of unpaid parental leave.
Part 1 of Schedule 1 to the Bill amends the FW Act to ensure that any special maternity leave
taken by an employee will not reduce an employees entitlement to unpaid parental leave. These
amendments further advance the rights of mothers by providing for a reasonable period of
maternity leave before and after childbirth by ensuring mothers who take unpaid special
maternity leave are not required to return to work earlier than would otherwise be necessary.
The FW Act also provides for the taking of unpaid parental leave in circumstances where both
members of an employee couple intend to take parental leave. Currently, members of an
employee couple must each take unpaid parental leave consecutively and in a single unbroken
period, subject to limited exceptions. One such exception is that both employees are entitled to
take leave at the same time for a period of three weeks from the date of the childs birth, with the
three week period able to be taken slightly earlier or later, by agreement with the employer.
Part 2 of Schedule 1 to the Bill extends the period during which parents can take concurrent
unpaid parental leave from three weeks to eight weeks, allows the parents to choose when they
want to take that leave in the first twelve months after the birth or placement of the child and
allows leave to be taken in separate periods of at least two weeks unless otherwise agreed by the
employer. This amendment supports the right to maternity leave and promotes the understanding
that both parents have an important role to play in raising a child and supports working parents to
fulfil those roles, in line with Australias obligations under the CRC.
Rights of parents and children
Article 3 of the CRC provides that, in all actions undertaken by legislative bodies, the best
interests of the child shall be a primary consideration, while Article 5 of the CRC states that
State Parties shall respect the responsibilities, rights and duties of parents. Finally, Article 18 of
the CRC sets out that State Parties shall use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the upbringing and development of
the child.
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Statement of Compatibility with Human Rights
Article 5(b) of the CEDAW provides that States Parties should take all appropriate measures to
ensure that family education includes a proper understanding of maternity as a social function
and the recognition of the common responsibility of men and women in the upbringing and
development of their children, it being understood that the interests of the children is the primary
consideration in all cases.
Family-friendly measures
The FW Act currently provides that an employee who is a parent, or has responsibility for the
care of a child, may request that their employer agree to a change in their working arrangements
to assist the employee to care for the child if the child is under school age or the child is under
the age of 18 and has a disability. Part 3 of Schedule 1 to the Bill amends this provision to
include further situations in which an employee can request a change in their working
arrangements, including for employees who are parents or who have responsibility for the care of
a child of school age, as well as specifying that an employee who is returning to work after
taking leave in relation to the birth or adoption of his or her child may request to work part-time.
This amendment further enhances the ability of parents to utilise flexible work arrangements in
order to better care for their children and is in line with Australias obligations under the CRC.
Subdivision C of Division 3 of Part 2-3 of the FW Act sets out terms that must be included in
modern awards, while Division 5 of Part 2-4 of the FW Act sets out terms that must be included
in enterprise agreements. Part 4 of Schedule 1 to the Bill inserts new content requirements in
both modern awards and enterprise agreements in relation to employers consulting with
employees about changes to regular rosters or ordinary hours of work before making any
decision to change rosters or working hours. These additional requirements will also require
employers to genuinely consult with affected employees about the impact of the changes on their
family and caring responsibilities should employees raise them.
The amendments made by Part 4 of Schedule 1 ensure that a persons family and caring
responsibilities are taken into account by their employer when changes are made to their working
arrangements. This accords with the obligations contained in the CRC and the CEDAW to render
appropriate assistance to the parents and legal guardians in the performance of their child-rearing
responsibilities.
Right to freedom of association
Article 22 of the ICCPR protects the right to freedom of association, including the right to form
and join trade unions. Article 8(1) of the ICESCR protects:
the right to form and join trade unions;
the right of trade unions to function freely subject to necessary limitations in the interests of
national security, public order or the protection of the rights and freedoms of others; and
the right to strike, provided it is exercised in conformity with the laws of the particular
country.
The ILO Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) protects the rights of employees and employers to establish and join organisations for
furthering and defending their interests, and the right of those organisations to organise their
activities and formulate their programmes.
Fair Work Amendment Bill 2013 7 Senate
Statement of Compatibility with Human Rights
Right of entry
The amendments made by Schedule 4 of the Bill engage the right to freedom of association and
the rights of people to form organisations to represent their interests. Of particular relevance in
the right of entry context is guidance provided by the Committee on Freedom of Association
established by the Governing Body of the International Labour Organisation in its 336th Report
at paragraph 108 that:
... Governments should guarantee access of trade union representatives to workplaces
with due respect for the rights of property and management, so that trade unions can
communicate with workers....
Part 3-4 of the FW Act provides a framework for right of entry for officials of organisations and
empowers the FWC to deal with the misuse of rights and disputes.
The object of Part 3-4 is to balance:
the right of organisations to represent their members in the workplace, hold discussions with
potential members and investigate suspected contraventions;
the right of employees and TCF award workers to receive, at work, information and
representation from officials of organisations; and
the right of occupiers of premises and employers to go about their business without undue
inconvenience.
The amendments made by Schedule 4 of the Bill will encourage parties to reach agreement as to
how entry by permit holders to workplaces is to be facilitated. The amendments assist
organisations in circumstances where agreement has not been possible by:
providing for interviews and discussions to be held in rooms or areas agreed by the occupier
and permit holder, or in the absence of agreement, in any room or area in which one or more
of the persons who may be interviewed or participate in the discussions ordinarily take meal
or other breaks and is provided by the occupier for that purpose;
facilitating assistance with transport and accommodation for permit holders at remote sites;
and
limiting the amounts that an occupier can charge a permit holder for provision of
accommodation or transport at remote sites to cost recovery.
Schedule 4 of the Bill enables the FWC to deal with disputes about the frequency of entry to
premises for discussion purposes. This could lead to the FWC placing limitations on the
frequency of entry. However, that could only occur if the FWC is satisfied that the frequency of
entry would require an unreasonable diversion of the occupiers critical resources.
Schedule 4 to the Bill also provides the FWC with the ability to deal with disputes about aspects
of accommodation and transport arrangements, such as whether to provide accommodation or
transport would cause the occupier undue inconvenience. This will ensure that occupiers of
premises are not required to go to unreasonable lengths to facilitate right of entry.
In all cases, in dealing with right of entry disputes, FWC must take into account fairness between
the parties concerned.
Fair Work Amendment Bill 2013 8 Senate
Statement of Compatibility with Human Rights
This amendment also ensures appropriate conduct by permit holders while being accommodated
or transported under a transport or accommodation arrangement, consistent with the right of
entry framework established by the FW Act.
The amendments in Schedule 4 of the Bill advance freedom of association and provide for right
of entry disputes to be resolved with due respect for both the rights of employees to be
represented at work and the rights of the occupiers of premises to maintain their property and
manage their businesses. These changes to the right of entry framework do not limit the right to
freedom of association.
General protections dismissal and unlawful termination disputes
The general protections in Part 3-1 of the FW Act are divided into protections relating to
workplace rights (which can be broadly described as employment entitlements and the freedom
to exercise and enforce those entitlements) and engaging in lawful industrial activities (which
encompasses the freedom to be or not be a member or officer of an industrial association and to
participate in lawful activities, including those of an industrial association).
The general protections also include a prohibition on an employer taking adverse action against
an employee or prospective employee of the employer because of the persons race, colour, sex,
sexual preference, age, physical or mental disability, marital status, family or carers
responsibilities, pregnancy, religion, political opinion, national extraction or social origin
(section 351).
Under Division 2 of Part 6-4 of the FW Act, it is unlawful to terminate an employees
employment on certain prohibited grounds such as:
employment rights, including filing a complaint, or participating in proceedings, against an
employer involving alleged violation of laws or regulations or recourse to competent
administrative activities;
trade union membership or activities; or
race, colour, sex, sexual preference, age, physical or mental disability, marital status, family
or carers responsibilities, pregnancy, religion, political opinion, national extraction or social
origin.
Provision of a low-cost alternative to court action for the resolution of these disputes therefore
advances the right to freedom of association.
Amendments to the Fair Work (Registered Organisations) Amendment Act 2012 (ROA Act)
The amendments to the Bill that the Government will move engage the right to freedom of
association and the rights of people to form organisations to represent their industrial interests.
However, the amendments work within the existing framework of the ROA Act and do not
substantially alter the requirements on registered organisations under that Act as currently
drafted. For the reasons set out in the Statement of Compatibility with Human Rights to the
Fair Work (Registered Organisations) Amendment Bill 2012, the amendments to the Bill which
would amend the ROA Act are compatible with human rights because to the extent that they may
limit human rights, those limitations are reasonable, necessary and proportionate.
Fair Work Amendment Bill 2013 9 Senate
Statement of Compatibility with Human Rights
Right to just and favourable working conditions
Article 7 of the ICESCR requires that State Parties recognise the right of everyone to the
enjoyment of just and favourable conditions of work which ensure, in particular, remuneration
that provides all workers with fair wages, a decent living and rest, leisure and reasonable
limitation of working hours and periodic holidays with pay, as well as remuneration for public
holidays.
Modern awards objective
Under the FW Act, the FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant safety net of terms and conditions. In making
or varying modern awards, the FWC must take into account the modern awards objective
(see subsection 134(1) of the FW Act).
Item 1 of Schedule 2 to the Bill amends the modern awards objective to include a new
requirement for the FWC to consider, in addition to the existing factors set out in subsection
134(1) of the FW Act, the need to provide additional remuneration for:
employees working overtime;
employees working unsocial, irregular or unpredictable hours;
employees working on weekends or public holidays; or
employees working shifts.
This amendment promotes the right to fair wages and in particular recognises the need to fairly
compensate employees who work long, irregular, unsocial hours, or hours that could reasonably
be expected to impact their work/life balance and enjoyment of life outside of work.
Anti-bullying measure
Article 7 of the ICESCR requires that State Parties to the Covenant recognise the right of
everyone to the enjoyment of just and favourable working conditions, including the right to safe
and healthy working conditions.
The House of Representatives Standing Committee on Education and Employment report
Workplace Bullying We just want it to stop notes that to most Australians, ,,work provides a
sense of dignity and is central to our individual and collective sense of identity.1 Recognising
the central place of work in our lives, the report goes on to note that workplace bullying ,,can
have a profound effect on all aspects of a persons health as well as their work and family life,
undermining self-esteem, productivity and morale.2
Schedule 3 to the Bill promotes the right to safe and healthy working conditions by providing a
mechanism to help an individual worker resolve a bullying matter quickly and inexpensively.
One of the key issues highlighted by the Committee was the difficulty people face in trying to
find a quick way to make the bullying stop so that they do not suffer further harm or injury.
Schedule 3 inserts Part 6-4B into the FW Act, which enables a worker who reasonably believes
that they have been bullied at work to make an application to the FWC for an order to prevent
1
House of Representatives Standing Committee on Education and Employment report, Workplace bullying "We just want it to stop", p. 1
2
Ibid, p. 2
Fair Work Amendment Bill 2013 10 Senate
Statement of Compatibility with Human Rights
future bullying. Early intervention in bullying matters can help to ensure that the bullying
behaviour is stopped before it has a chance to negatively impact on the persons health and
wellbeing.
Under subsection 789FC(2) of Part 6-4B ,,worker has the same meaning as in the
Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence
Force. This recognises the unique nature of service in the Defence Force (which is a disciplined
force that is called upon to undertake service in dangerous operating environments) and the need
to maintain the integrity of its command structure.
Consistent with the WHS Act, the Bill also provides:
for the FWC to dismiss a workplace bullying application if it considers that the application
might involve matters relating to Australias defence, national security, or existing or future
covert or international operations of the AFP (new subsection 789FE(2));
that nothing in Part 6-4B of the FW Act requires or permits a person to take, or to refrain
from taking, any action if the taking of the action, or the refraining from taking the action,
would be, or could reasonably be expected to be, prejudicial to Australias defence, national
security, or existing or future covert or international operations of the AFP (new section
789FI);
for the Chief of the Defence Force to declare by legislative instrument, if the Minister for
Employment and Workplace Relations approves, that all or specified provisions of Part 6-4B
of the Act do not apply in relation to specified activities (new section 789FJ); and
for the Director-General of Security or the Director-General of the Australian Secret
Intelligence Service (ASIS) to declare by legislative instrument, if the Minister for
Employment and Workplace Relations approves, that all or specified provisions of Part 6-4B
of the Act do not apply in relation to persons carrying out work for the Director-General of
Security (new section 789FK) or the Director-General of ASIS (new section 789FL).
These amendments align with the existing framework for exemptions under the WHS Act, which
reflects the sensitive nature of the work that is undertaken by Australias defence and security
personnel. Declarations issued by the Chief of Defence Force, Director-General of Security and
the Director-General of ASIS will be in the form of legislative instruments and will be subject to
scrutiny by both Houses of Parliament. Such declarations can also only be made with the
approval of the Minister for Employment and Workplace Relations. These safeguards will ensure
that such declarations are subject to appropriate scrutiny.
To the extent that these provisions reduce access to FWC orders under Part 6-4B, they are
necessary to ensure that the workplace bullying measures do not interfere with Australias
defence, national security or covert or international law enforcement activity, and achieve that
legitimate objective in a proportionate and reasonable way.
General protections dismissal and unlawful termination disputes
As described above, the general protections and unlawful termination provisions protect
employees against dismissal for reasons such as their employment rights. Provision of a low-cost
alternative to court action for the resolution of these disputes advances the right to just and
favourable conditions of work.
Fair Work Amendment Bill 2013 11 Senate
Statement of Compatibility with Human Rights
Right to safe and healthy working conditions
Article 11(1) of the CEDAW sets out that States Parties shall take all appropriate measures to
eliminate discrimination against working women to ensure equal rights, in particular the right to
protection of health and to safety in working conditions, including the safeguarding of the
function of reproduction. Article 11(2)(d) of the CEDAW sets out that in order to ensure women
their effective right to work States Parties shall take appropriate measures to provide special
protection to women during pregnancy in types of work proved to be harmful to them.
Article 7 of the ICESCR requires that State Parties to the Covenant recognise the right of
everyone to the enjoyment of just and favourable working conditions, including:
remuneration that provides all workers, as a minimum, with fair wages and equal
remuneration for work of equal value without distinction of any kind;
safe and healthy working conditions; and
rest, leisure and reasonable limitations on working hours and periodic holidays with pay, as
well as remuneration for public holidays.
Family-friendly measures
The FW Act provides a pregnant employee who has completed twelve months service and who
is otherwise eligible for unpaid parental leave with an entitlement to be transferred to an
appropriate safe job for a risk period, if she provides evidence that she is fit for work, but that it
is inadvisable for her to continue in her present position because of illness or risks arising out of
her pregnancy, or hazards associated with the position.
Part 5 of Schedule 1 to the Bill extends the right to transfer to a safe job to all pregnant
employees regardless of their length of service. This enhances the protection of health and safety
in working conditions and further safeguards the function of reproduction by ensuring that all
pregnant employees are entitled to be transferred to an appropriate, safe job during their
pregnancy.
Right to the enjoyment of the highest attainable standard of physical and mental health
Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health. This
includes taking steps towards the prevention and control of occupational and other diseases.
Anti-bullying measure
As noted in the House of Representatives Standing Committee on Education and Employments
report Workplace Bullying We just want it to stop, workplace bullying often results in
significant negative consequences for an individuals health and wellbeing.3 The negative effects
of workplace bullying can manifest both mentally and physically, including depression, anxiety,
sleep disturbances, nausea and musculoskeletal complaints and muscle tension.4
3
Ibid, p. 12
4
Ibid.
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Statement of Compatibility with Human Rights
Schedule 3 to the Bill promotes the right to the enjoyment of the highest attainable standard of
physical and mental health by allowing for early intervention to stop and prevent workplace
bullying by providing a quick and cost-effective remedy to individuals. The need for quick
action in these situations is reflected in the process established by Schedule 3, which requires the
FWC to start to deal with the matter within 14 days of the application being made.
Schedule 3 to the Bill enables FWC to make an order to stop bullying that is tailored to the
specific circumstances of the applicant. To reinforce the preventative nature of these
amendments orders may not include requiring the payment of a pecuniary amount. As such,
these amendments will assist in preventing incidence of workplace bullying at an early enough
stage to minimise the risk of physical and mental harm to individuals.
As noted above, to the extent that limitations in relation to the Defence Force, Australias
security agencies and the AFP reduce access to FWC orders under Part 6-4B, they are necessary
to ensure that the workplace bullying measures do not interfere with Australias defence,
national security or covert or international law enforcement activity, and achieve that legitimate
objective in a proportionate and reasonable way.
Right to non-discrimination
Rights to equality and non-discrimination in employment are provided under Articles 2(1) and
26 of the ICCPR, Article 2 of the ICESCR, Article 5(e)(i) and (ii) of the CERD, Article 11 of the
CEDAW and Article 27 of the CRPD.
Family-friendly measures
The FW Act currently provides that an employee who is a parent of a child may request that their
employer agree to a change in their working arrangements to assist the employee to care for the
child.
Part 3 of Schedule 1 to the Bill extends the right to request a change in working arrangements to
a broader category of persons, including to employees with caring responsibilities, parents with
children that are school age or younger, employees with a disability, those who are mature age,
as well as to employees who are experiencing violence from a family member or are providing
care and support to a member of their immediate family or a member of their household as a
result of family violence.
In some circumstances it is legitimate to take measures that assist or recognise the interests of
particular groups in the community who may be disadvantaged. The UN Committee on the
Elimination of All Forms of Discrimination against Women, for example, has stated that gender-
based violence, including domestic violence is a form of discrimination that seriously inhibits
women's ability to enjoy rights and freedoms on a basis of equality with men.5
Extending the right to request a change in working conditions to this additional range of
employees recognises the interests of these particular groups and further enhances the assistance
provided to them.
5
Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19 (11th Session, 1992)
Fair Work Amendment Bill 2013 13 Senate
Statement of Compatibility with Human Rights
Part 4 of Schedule 1 to the Bill amends Subdivision C of Division 3 of Part 2-3 and Division 5 of
Part 2-4 of the FW Act to insert new content requirements in modern awards and enterprise
agreements in relation to employers consulting with employees about changes to regular rosters
or ordinary hours of work before making any decision to change those rosters or hours. These
additional requirements will require employers to genuinely consult with affected employees
about the impact of the changes on their family and caring responsibilities.
These amendments reinforce existing protections against discrimination contained in the
FW Act. In particular, the requirement to be consulted prior to changes being made to regular
rosters or ordinary hours of work will help to ensure that the specific needs of persons with
family and caring responsibilities are given proper consideration by employers before changes
are made to their rosters or ordinary hours of work.
Anti-bullying measure
Workplace bullying can be motivated by a wide range of factors, including the grounds
encompassed by the Conventions listed above. While there are existing anti-discrimination
mechanisms in Australia that provide a right of recourse to individuals who have been subject to
discriminatory behaviour, Schedule 3 to the Bill will reinforce these protections by providing a
quick, cost effective mechanism for individuals to apply for an order to stop the bullying.
General protections dismissal and unlawful termination disputes
As described above, the general protections and unlawful termination provisions protect
employees against dismissal for reasons such as their race, colour, sex etc. Provision of a low-
cost alternative to court action for the resolution of these disputes therefore advances the right to
equality and non-discrimination in employment.
Right to an effective remedy
Article 2(3) of the ICCPR provides the right to an effective remedy, including the right to have
that right determined by competent judicial, administrative or legislative authorities, or any other
competent authority and matters such as the right to a presumption of innocence and the right to
not be compelled to testify against himself or herself or to confess to guilt.
General protections dismissal and unlawful termination disputes
Provision of a low-cost alternative to court action for the resolution of general protections
dismissal and unlawful termination disputes advances the right to an effective remedy.
The limitations on appeals will not prevent genuine appeals from being pursued, but will
discourage speculative claims and are reasonable and proportionate to address the time and
expense that an appeal may cause another party to incur.
The costs provisions will strike a balance between the need to protect workers from adverse
action and to provide a deterrent against unreasonable conduct during proceedings. They will not
prevent genuine claims from being pursued.
The amendments will shorten the time limit for making an unlawful termination application from
60 days to 21 days. The FWC will retain its existing ability to accept late applications in
exceptional circumstances, taking into account factors such as the reason for the delay, fairness
and the merits of the case.
Fair Work Amendment Bill 2013 14 Senate
Statement of Compatibility with Human Rights
The new time limit will align with the 21 day time limit for lodging general protections dismissal
and unfair dismissal applications. This will provide greater clarity to applicants and respondents
and require applicants to determine at the outset which claim they intend to pursue. Where an
employee challenges a dismissal, it is in the interests of both the employee and the employer for
the matter to be resolved quickly so that, in the event of a successful challenge, the employee can
return to their original position with minimal impact on relationships and management of the
business. The time limits for dismissal applications balance the need to provide sufficient time
for employees to consider the most appropriate application, and the need to provide certainty for
employers in relation to the types of claims they may be exposed.
Right to a fair hearing
Article 14 of the ICCPR provides the right to a fair hearing, including matters such as the right to
a presumption of innocence and the right to not be compelled to testify against himself or herself
or to confess to guilt.
Anti-bullying measure
The FW Act established the FWC as an independent tribunal with a range of functions and
powers to deal with workplace relations matters.
The amendments contained in Schedule 3 to the Bill do not directly engage the rights contained
in Article 14 of the ICCPR as they do not create an ,,offence of bullying in the workplace.
Instead, the amendments identify actions and behaviours that may constitute workplace bullying
and enable FWC to make orders to stop bullying. An individual cannot be subject to criminal or
civil sanctions as a result of an application under these provisions. The exception to this is if the
individual identified by the applicant as engaging in the unreasonable behaviour does not comply
with the term of the stop bullying order, at which time the applicant may seek a civil remedy
against them.
Schedule 3 requires FWC to start dealing with an application within 14 days of the application
being made.
Section 590 of the FW Act provides the FWC with flexibility to inform itself as it considers
appropriate in relation to an application for an order to stop the bullying. This may include
contacting the employer or other parties to the application, conducting a conference or holding a
formal hearing. In the course of dealing with a matter, the FWC may make a recommendation to
the parties or express an opinion.
While the individual alleged to have engaged in the bullying behaviour may be involved in these
proceedings, they will not have an adverse determination made against them and any order to
stop bullying made by the FWC will focus solely on preventing future harm. As such, this
amendment does not limit human rights.
General protections dismissal and unlawful termination disputes
The FWC is an independent tribunal, which exercises its powers in a fair and just manner,
including by applying the principles of procedural fairness.
Any FWC arbitration of disputes will be only with the consent of the parties.
Fair Work Amendment Bill 2013 15 Senate
Statement of Compatibility with Human Rights
An individual cannot be subject to criminal or civil sanctions as a result of an application to the
FWC under the general protections or unlawful termination provisions. The exception to this is if
the individual identified by the applicant as engaging in the adverse action does not comply with
the term of a FWC order, at which time the applicant may seek a civil remedy against them. In
considering civil remedies, the relevant court would apply the presumptions, guarantees and
rights recognised in Articles 14 and 15 of the ICCPR.
Right to privacy and reputation
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy. Privacy guarantees a right to secrecy from the public of personal
information. For interference with privacy not to be arbitrary it must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the particular
circumstances. Reasonableness in this context incorporates notions of proportionality to the end
sought and necessity in the circumstances.
Anti-bullying measure
The amendments to be made by Schedule 3 to the Bill enables the FWC, upon receiving an
application in relation to workplace bullying, to inform itself in such a manner as it considers
appropriate. This can include requiring a person to provide documents to the FWC. In this
context, this may involve the FWC requesting the applicants employer to provide documents
relating to their internal anti-bullying processes and information about any management action
that has been taken that relates to the matter in question.
The ability of the FWC to collect this information is considered proportionate, appropriate and
necessary to facilitate the effective administration of these amendments. Given the health risks
posed by workplace bullying, it is essential that the FWC be able to easily and quickly access
information that relates to applications for a stop bullying order. Any information collected
through these processes will be handled in accordance with the FWCs privacy obligations under
legislation such as the Privacy Act 1982 and consistent with section 655 of the FW Act which
allows for the disclosure of information by FWC.
General protections dismissal and unlawful termination disputes
The amendments will allow the FWC, upon receiving an application in relation to a general
protections dismissal or in relation to an unlawful termination, to inform itself in such a manner
as it considers appropriate. This can include requiring a person to provide documents to the
FWC. In this context, this may involve the FWC requesting the applicants employer to provide
documents relating to their internal employment processes and information about any
management action that has been taken that relates to the matter in question.
The ability of the FWC to collect this information is necessary to facilitate the effective
administration of these amendments, noting that any FWC process under the amendments will be
only by consent. Information will be handled in accordance with the Privacy Act 1982 and
consistent with section 655 of the FW Act, which deals with the disclosure of information by the
FWC.
Fair Work Amendment Bill 2013 16 Senate
Statement of Compatibility with Human Rights
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights. To
the extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate.
Minister for Employment and Workplace Relations, the Honourable William Shorten MP
Fair Work Amendment Bill 2013 17 Senate
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
Financial impacts were announced as part of the 2013-14 Budget.
Fair Work Amendment Bill 2013 18 Senate
Notes on clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
AFP Australian Federal Police
ASIS Australian Secret Intelligence Service
FW Act Fair Work Act 2009
FW Amendment Act 2012 Fair Work Amendment Act 2012
FWA Fair Work Australia
FWC Fair Work Commission
FW (T&C) Act Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009
RO Act Fair Work (Registered Organisations) Act 2009
ROA Act Fair Work (Registered Organisations) Amendment Act 2012
the Bill Fair Work Amendment Bill 2013
WHS Act Work Health and Safety Act 2011
WHS laws Work health and safety laws
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
Clause 3 - Schedule(s)
3. Clause 3 of the Bill provides that an Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule operates according to its
terms.
Fair Work Amendment Bill 2013 19 Senate
Family-Friendly Measures - Schedule 1
SCHEDULE 1 - FAMILY-FRIENDLY MEASURES
Part 1 - Special maternity leave
Overview
4. Part 1 of Schedule 1 amends the unpaid special maternity leave provisions of the
FW Act. The effect of these amendments will be that any period of unpaid special maternity
leave taken by an eligible employee will not reduce that employees entitlement to unpaid
parental leave under section 70 of the FW Act.
5. These amendments implement Panel recommendation 4.
Fair Work Act 2009
Item 1 - Section 70 (note 1)
Item 2 - Section 70 (note 2)
Item 3 - Paragraph 75(2)(c)
Item 4 - Paragraph 75(2)(d)
Item 5 - Paragraph 76(6)(a)
Item 6 - Paragraph 76(6)(b)
Item 7 - Subsection 80(1) (note)
Item 8 - At the end of subsection 80(1)
Item 9 - Subsection 80(7)
Item 10 - Section 97 (note)
Item 11 - At the end of section 97
6. Section 80 of the FW Act provides for an entitlement to unpaid special maternity leave
for an eligible employee who is not fit for work while she is pregnant, including because she has
a pregnancy-related illness. Subsection 80(7) of the FW Act currently provides that any period of
special maternity leave taken by the employee reduces the employees entitlement to 12 months
of unpaid parental leave under section 70 by an equivalent amount. Sections 75 and 76 of the
FW Act deal with the extension of unpaid parental leave in certain circumstances.
7. Item 9 repeals subsection 80(7) of the FW Act. The effect of this amendment is that the
taking of a period of unpaid special maternity leave will not reduce an employees entitlement to
unpaid parental leave. Items 3, 4, 5 and 6 make corresponding amendments to remove references
to unpaid special maternity leave in subsections 75(2) and 76(6) of the FW Act.
8. Items 1 and 2 make changes to notes in section 70 of the FW Act, consequential on the
amendment made by item 9.
9. Items 8 and 11 insert notes that make clear that where an employee has an entitlement
to paid personal/carers leave, the employee may take that leave before taking unpaid special
maternity leave. Items 7 and 10 make amendments consequential upon the insertion of the notes.
Application of amendments
10. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 2 of new Schedule 4
provides that these amendments apply in relation to periods of unpaid special maternity leave
that start after the commencement of Part 1 of Schedule 1 to the Bill.
Fair Work Amendment Bill 2013 20 Senate
Family-Friendly Measures - Schedule 1
Part 2 - Parental leave
Overview
11. Part 2 of Schedule 1 to the Bill amends the concurrent leave provisions of the FW Act.
These amendments will provide parents with greater flexibility when caring for their child by
increasing the maximum period of concurrent leave available under the unpaid parental leave
provisions from 3 to 8 weeks. The amendments will also provide greater flexibility for when
parents may choose to take concurrent leave, by enabling the 8 weeks leave to be taken in
separate periods (of at least 2 weeks, or a shorter period if agreed by the employer) at any time
within the first 12 months of the birth or adoption of a child.
Fair Work Act 2009
Item 12 - Section 12
12. Item 12 inserts a signpost definition of ,,concurrent leave in the dictionary (section 12).
Item 13 - Paragraphs 72(5)(a), (b) and (c)
Item 14 - Subsection 74(2)
Item 15 - After subsection 74(4)
13. Section 72 of the FW Act deals with the taking of unpaid parental leave in
circumstances where both members of an employee couple (that is, where one employee is the
spouse or de facto partner of another employee) intend to take parental leave. In general,
members of an employee couple must each take unpaid parental leave consecutively and in a
single unbroken period, subject to limited exceptions.
14. Subsection 72(5) of the FW Act provides a limited exception to the rule that both
members of an employee couple must take unpaid parental leave consecutively. Currently, both
employees are entitled to take leave at the same time for a period of three weeks from the date of
the childs birth or adoption. By agreement with the employer, the three weeks concurrent leave
may be taken earlier than the birth and up to six weeks from the date of the childs birth or
adoption.
15. Under section 72(6) of the FW Act, the taking of concurrent leave is also an exception
to the rule that the employee must take his or her leave in a single unbroken period.
16. Item 13 repeals paragraphs 72(5)(a), (b) and (c) and replaces them with new paragraphs
72(5)(a), (b) and (c). New paragraph 72(5)(a) provides that the concurrent unpaid parental leave
may be up to 8 weeks in total. New paragraph 72(5)(b) provides that the concurrent leave may be
taken in separate periods of at least 2 weeks each, or a shorter period if the employer agrees.
New paragraph 72(5)(c) provides that, unless otherwise agreed by the employer, the concurrent
leave must not start before the date of birth or, in the case of adoption, the day of placement of
the child with the employee for adoption.
17. Under current section 74 of the FW Act, an employee must give his or her employer at
least 10 weeks written notice of the taking of unpaid parental leave under sections 71 and 72. If
the provision of 10 weeks notice is not practicable, the employee can provide the notice as soon
as is practicable.
18. Subsection 74(4) of the FW Act requires an employee to confirm the intended start and
end dates of the leave (or advise of any changes) at least 4 weeks before the intended start date,
unless it is not practicable to do so.
Fair Work Amendment Bill 2013 21 Senate
Family-Friendly Measures - Schedule 1
19. Item 14 repeals subsection 74(2) and substitutes new subsection 74(2). New
subsection 74(2) provides that an employee must give 10 weeks written notice of the taking of
unpaid parental leave, except where a member of an employee couple intends to take second and
subsequent periods of concurrent leave in accordance with new paragraph 72(5)(b), in which
case the employee must give at least 4 weeks written notice. The 10 weeks notice period will
continue to apply in relation to the taking of the first period of concurrent unpaid parental leave.
20. Item 15 inserts new subsection 74(4A). New subsection 74(4A) provides that the
requirements to confirm or advise of changes of intended start and end dates under
subsection 74(4) do not apply in relation to second and subsequent periods of concurrent unpaid
parental leave.
Application of amendments
21. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 3 of new Schedule 4
provides for these amendments to apply in relation to periods of unpaid parental leave that are
taken by members of an employee couple if the first taking of leave by either member of the
employee couple occurs after the commencement of Part 2 of Schedule 1.
Part 3 - Right to request flexible working arrangements
Overview
22. Part 3 of Schedule 1 amends provisions of the FW Act about the requests for flexible
working arrangements, in part response to Panel recommendation 5, by extending the right to
request a change in working arrangements to a wider range of caring and other circumstances.
23. The Part also provides a non-exhaustive list of what might constitute ,,reasonable
business grounds for the purposes of refusing a request under the Part.
Fair Work Act 2009
Item 16 - Section 12 (definition of school age)
24. Item 16 amends the definition of ,,school age set out in section 12 of the FW Act to
mean the age at which a child is required to attend school in the relevant State or Territory. This
amendment is consequential on the amendment in item 17 inserting new paragraph 65(1A)(a).
Item 17 - Subsection 65(1)
25. Currently, subsection 65(1) of the FW Act provides that an employee may request a
change in his or her working arrangements to assist the employee with his or her caring
responsibilities. Subsection 65(1) applies in circumstances where the employee is a parent, or has
responsibility for the care of a child, if the child is under school age or the child is under the age
of 18 and has a disability.
26. Item 17 replaces subsection 65(1) of the FW Act with new subsections 65(1), 65(1A)
and 65(1B).
27. New subsection 65(1) provides that if an employee would like to change his or her
working arrangements because of any of the circumstances specified in new subsection 65(1A),
then the employee is entitled to request a change in his or her working arrangements. The terms
of new subsection 65(1) make clear that the reason the employee would like to change their
working arrangement is because of the particular circumstances of the employee. That is, there
must be a nexus between the request and the employees particular circumstances.
28. These provisions are not intended to limit the timing or nature of discussions about
flexible working arrangements generally. For example, where an employee can foresee that he or
she may need to assume caring responsibilities in the short to medium term, it is anticipated that
Fair Work Amendment Bill 2013 22 Senate
Family-Friendly Measures - Schedule 1
the employee could commence discussions ahead of assuming those responsibilities to ,,flag that
a request in accordance with these provisions may be coming, and to give the parties an
opportunity to explore suitable alternative arrangements that accommodate the needs of both
parties. Consistent with the current operation of the right to request provisions and the intent of
these provisions to promote discussion between employers and employees about flexible
working arrangements, there is no evidence requirement attaching to the request. It would be
expected that documentation relating to the particular circumstances of an employee would be
addressed in discussions between employers and employees.
29. New subsection 65(1A) sets out the range of circumstances related to a request under
subsection 65(1), namely, that the employee:
is the parent, or has responsibility for the care, of a child who is of school age or younger;
is a carer (within the meaning of the Carer Recognition Act 2010);
has a disability;
is 55 or older;
is experiencing violence from a member of the employees family; or
provides care or support to a member of his or her immediate family or a member of his or
her household who requires care or support because the member is experiencing violence
from the members family.
30. New subsection 65(1B) explicitly provides that an employee who is a parent, or has
responsibility for the care of a child, and who is returning to work after taking leave in
connection with the birth or adoption of the child, is entitled to request to work on a part-time
basis, to assist the employee to care for the child.
31. For example, as a parent of a child who is of school age or younger, an employee
returning from parental leave would also be able to request changes to their working
arrangements other than part-time hours, such as to change their patterns of work to take longer
work or meal breaks, or adjust their start and finish times, under subsection 65(1).
32. The term ,,carer in new paragraph 65(1A)(b) is given the meaning set out in the
Carer Recognition Act 2010 and encompasses all people who provide personal care, support and
assistance to individuals who need support due to disability, a medical condition, including a
terminal or chronic illness, mental illness or fragility due to age.
33. A person is not a carer within the meaning of the Carer Recognition Act 2010 in respect
of care, support or assistance he or she provides under a contract of service or a contract for the
provision of services, in the course of doing voluntary work for a charitable, welfare or
community organisation, or as part of the requirements of a course of education or training. A
person will not be precluded from being a carer, however, if they are paid for their caring
services in one context, but in another context provides care to an individual within the meaning
of the Carer Recognition Act 2010.
34. To avoid doubt, a person is not a carer within the meaning of the Carer Recognition
Act 2010 simply because he or she is the spouse, de facto partner, parent or other relative or
guardian of an individual who requires care or lives with an individual who requires care. For
example, a parent of a child with a disability is not a carer unless the child being cared for needs
support from that parent due to that disability.
35. ,,Disability in new paragraph 65(1A)(c) is not defined and has its ordinary meaning.
Fair Work Amendment Bill 2013 23 Senate
Family-Friendly Measures - Schedule 1
36. References to ,,family and family violence in new paragraphs 65(1A)(e) and (f) are not
defined. ,,Family includes persons, whether related by blood, marriage, adoption, step or
fostering and those who usually reside in the same household. The Australian Law Reform
Commission (ALRC) has conducted a number of extensive inquiries into family violence,
including a review of Australian and international definitions of family violence. Based on this
review the ALRC has concluded that ,,family violence includes violent or threatening behaviour
or any other form of behaviour that coerces or controls a family member or causes that family
member to be fearful. Family violence may include, but is not limited to physical violence,
sexual assault and other sexually abusive behaviour, economic abuse and emotional or
psychological abuse.
Item 18 - After subsection 65(5)
37. Currently, under subsection 65(5) of the FW Act, an employer may refuse a request for
a change in working arrangements only on reasonable business grounds.
38. Item 18 inserts new subsection 65(5A), which sets out a non-exhaustive list of what
may constitute reasonable business grounds, including:
the excessive cost of accommodating the request;
that there is no capacity to reorganise work arrangements of other employees to
accommodate the request;
the impracticality of any arrangements that would need to be put in place to accommodate
the request, including the need to recruit replacement staff;
that there would be a significant loss of efficiency or productivity;
that there would be a significant negative impact on customer service.
39. The list of reasonable business grounds is not exhaustive and such grounds will be
determined having regard to the particular circumstances of each workplace and the nature of the
request made.
Application of amendments
40. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 4 of new Schedule 4
provides for these amendments to apply in relation to requests under new subsection 65(1) of the
FW Act that are made on or after the commencement of Part 3 of Schedule 1.
Part 4 - Consultation about changes to rosters or working hours
Overview
41. Part 4 of Schedule 1 inserts new content requirements for modern awards and
enterprise agreements in relation to employers consulting with employees about changes to
regular rosters or ordinary hours of work. The intention of the amendments is to promote
discussion between employers and employees who are covered by a modern award or who are
party to an enterprise agreement about the likely impact of a change to an employees regular
roster or ordinary hours of work, particularly in relation to the employees family and caring
arrangements, by requiring employers to genuinely consult employees about such changes and
consider the impact of the change in making such changes raised by employees.
Fair Work Act 2009
Item 19 - After section 145
42. Subdivision C of Division 3 of Part 2-3 of the FW Act sets out terms that must be
included in modern awards.
Fair Work Amendment Bill 2013 24 Senate
Family-Friendly Measures - Schedule 1
43. Item 19 inserts new section 145A, which relates to changes to regular rosters or
ordinary hours of work. New paragraph 145A(1)(a) provides that modern awards must include a
term that requires employers to genuinely consult with employees about changes to their regular
roster or ordinary hours of work.
44. ,,Regular roster in new paragraph 145A(1)(a) is not defined. It is intended that the
requirement to consult under new section 145A will not be triggered by a proposed change
where an employee has irregular, sporadic or unpredictable working hours. Rather, regardless of
whether an employee is permanent or casual, where that employee has an understanding of, and
reliance on the fact that, their working arrangements are regular and systematic, any change that
would have an impact upon those arrangements will trigger the consultation requirement in
accordance with the terms of the modern award. The employer will be required to inform
employees about the proposed change to their regular roster or ordinary hours of work and invite
employees to give their views on the impact of the proposed change (particularly any impact
upon the employees family and caring responsibilities), and consider those views.
45. The amendments will ensure that employers cannot unilaterally make changes that
adversely impact upon their employees without consulting on the change and considering the
impact of those changes on those employees family and caring responsibilities.
46. New paragraph 145A(1)(b) provides that the term must allow for the representation of
those employees for the purposes of the consultation. A person representing an employee for the
purposes of new paragraph 145A(1)(b) could be an elected employee or a representative from an
employee organisation.
47. New subsection 145A(2) sets out the consultation process to be included in the term of
the modern award. The term must require an employer to consult with employees about a change
to a regular roster or ordinary hours of work by:
providing information to the employees about the change;
inviting employees to give their views about the impact of the change (including any impact
in relation to their family and caring responsibilities); and
considering any views put forward by those employees about the impact of the change.
Illustrative example
Gabrielle has worked 4 days a week with Wednesdays off for several years. Her employer knows
that she has school aged children and that she cares for her elderly mother on her day off. Her
employer has decided to change the arrangements under which Gabrielle works such that she
will no longer be able to take Wednesdays off. Before changing her regular rostered hours of
work, in accordance with the consultation term included in the applicable modern award,
Gabrielles employer will be required to provide information to her about the proposed change,
give her an opportunity to raise with her employer the impact of the proposed change on her
(including in the context of her family and caring responsibilities) and require the employer to
consider Gabrielles views on that impact before making any changes.
48. The dispute resolution mechanisms of the relevant workplace instrument will apply to
the operation of the consultation term.
49. Compliance with consultation terms, including the new requirements in relation to
regular rosters and ordinary working hours, will continue to be enforceable by application to a
Court.
Fair Work Amendment Bill 2013 25 Senate
Family-Friendly Measures - Schedule 1
Application of amendments
50. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 5 of new Schedule 4
provides that these amendments apply to a modern award that is in operation on or after
1 January 2014, whether or not the award was made before that day.
51. Item 5 of new Schedule 4 also provides that Part 4 of Schedule 1 to this Bill applies in
relation to a modern award if the award:
is made before 1 January 2014; and
is in operation on that day; and
immediately before that day, does not include a consultation term (the ,,relevant term) of the
kind mentioned in new section 145A (as inserted by item 19 of Schedule 1).
52. If these criteria are satisfied, the FWC must, by 31 December 2013, make a
determination varying the modern award to include the relevant term. Such a determination
comes into operation on (and takes effect from) 1 January 2014. Where a modern award contains
an existing consultation term, it will be open to the FWC to make a determination varying the
existing term in accordance with these amendments.
53. Section 168 of the FW Act, which requires the FWC to publish an award as varied by a
FWC determination as soon as practicable, applies to a determination made under these
provisions.
Item 20 - Paragraph 205(1)(a)
Item 21 - After subsection 205(1)
54. Division 5 of Part 2-4 of the FW Act sets out terms that must be included in an
enterprise agreement. Currently, an enterprise agreement must include a term requiring an
employer to consult about major workplace changes that are likely to have a significant effect on
the employees (subsection 205(1) of the FW Act).
55. Item 20 repeals paragraph 205(1)(a) of the FW Act, and substitutes new
paragraph 205(1)(a).
56. New paragraph 205(1)(a) requires the employer or employers to which an enterprise
agreement applies to consult the employees to whom the agreement applies about:
a major workplace change that is likely to have a significant effect on the employees; or
a change to their regular roster or ordinary hours of work.
57. New subparagraph 205(1)(a)(ii) provides for the additional requirement that an
enterprise agreement must include a term about consultation on change to a regular roster or
ordinary hours of work. The effect of this amendment is to ensure that, where a change to regular
rosters or ordinary hours of work (which may impact upon an employee, particularly in relation
to his or her family and caring responsibilities) does not constitute ,,major workplace change in
accordance with subsection 205(1), an employer will nevertheless be required to engage in
consultation with the employee about the change and impacts raised by the employee.
Fair Work Amendment Bill 2013 26 Senate
Family-Friendly Measures - Schedule 1
58. Item 21 inserts new subsection 205(1A) which sets out the consultation process to be
included in a term in an enterprise agreement. The term must require an employer to consult with
employees about change to a regular roster or ordinary hours of work by:
providing information to the employees about the change;
inviting employees to give their views about the impact of the change (including any impact
in relation to their family and caring responsibilities); and
considering any views put forward by those employees about the impact of the change.
59. As discussed at paragraph 44, the consultation term will only be triggered where the
change relates to ,,regular rosters or ordinary working hours.
60. Paragraph 205(1)(b) of the FW Act allows for the representation of employees for the
purposes of consultation referred to in paragraph 205(1)(a) of the FW Act. A person representing
an employee for the purposes of new subparagraph 205(1)(a)(ii) of the FW Act could be an
elected employee or a representative from an employee organisation eligible to represent the
employee.
61. Employers and employees will still be able to negotiate a consultation term for
inclusion in an enterprise agreement that meets the requirements of their particular workplace.
The agreement must include a term in accordance with these amendments. If an enterprise
agreement negotiated by employers and employees does not include a consultation term for the
purposes of their particular workplace, in accordance with subsection 205(2) of the FW Act, the
model consultation term, which will be amended in accordance with these amendments, will be
taken to be a term of the agreement.
62. The dispute resolution mechanisms of the relevant workplace instrument will also
apply to the operation of the consultation term
63. Compliance with consultation terms, including the new requirements in relation to
regular rosters and ordinary working hours, will continue to be enforceable by application to the
Courts.
Application of amendments
64. Schedule 7 inserts new Schedule 4 to the FW Act. Item 5 of new Schedule 4 provides
that the amendments made by items 20 and 21 of Schedule 1 to the Bill apply in relation to an
enterprise agreement that is made on or after the commencement of that Schedule.
Part 5 - Transfer to a safe job
Overview
65. Part 5 of Schedule 1 extends the existing entitlement to transfer to a safe job to a
pregnant employee regardless of whether she has, or will have, an entitlement to unpaid parental
leave.
66. Currently, an employee is eligible for unpaid parental leave if they have, or will have
completed at least 12 months of continuous service with their employer immediately before the
proposed leave is to start. The employee is only entitled to transfer to a safe job if they are
entitled to unpaid parental leave. The effect of these amendments is that, subject to the usual
evidence requirements being met, the entitlement to be transferred to an appropriate safe job
applies to any pregnant employee, regardless of the period of service that the employee will have
worked.
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Family-Friendly Measures - Schedule 1
67. Under these amendments, if there is no appropriate safe job available:
The current arrangements for an employee who is entitled to unpaid parental leave and who
has complied with the notice and evidence requirements continue and the employee will be
entitled to paid no safe job leave, and
A new provision which provides that an employee who is not entitled to unpaid parental
leave and who complies with any evidence requirements is entitled to unpaid no safe job
leave.
Fair Work Act 2009
Item 22 - Section 12 (definition of appropriate safe job)
Item 23 - Section 12 (definition of paid no safe job leave)
Item 24 - Section 12
68. Items 22 and 23 make numbering changes to the signpost definitions of ,,appropriate
safe job and ,,paid no safe job leave in the dictionary (section 12), consequential on the
amendments in item 29. Item 24 inserts a signpost definition of ,,risk period and ,,unpaid no safe
job leave in the dictionary (section 12).
Item 25 - Subsections 67(1) and (2)
Item 26 - Subsection 71(3) (note 2)
Item 27 - Subparagraph 73(2)(c)(ii)
Item 28 - Subsection 73(2) (note)
Item 29 - Section 81
Item 30 - After section 82
69. Item 29 repeals section 81 of the FW Act and substitutes new sections 81 and 81A.
70. New subsection 81(1) provides a pregnant employee with an entitlement to be
transferred to a safe job. The employee must provide evidence of the kind that would satisfy a
reasonable person that she is fit for work, but that it is inadvisable for her to continue in her
present position during the risk period because of illnesses or risks arising out of her pregnancy,
or hazards connected with the position. New subsection 81(6) provides that an employer may
require the evidence to be in the form of a medical certificate.
71. New subsection 81(2) provides that where these requirements are met, for the duration
of the risk period the employee must be transferred to an appropriate safe job with no other
change to the employees terms and conditions of employment. A note to new subsection 81(2)
indicates that if there is no appropriate safe job available, the employee may be entitled to paid
no safe job leave under section 81A or unpaid no safe job leave under new section 82A of the
FW Act.
72. New subsection 81(3) retains the current definition of ,,appropriate safe job to be a safe
job that has the same ordinary hours of work as the employees present position, or an agreed
different number of hours. New subsection 81(4) retains the current requirement that an
employer pay the transferred employee at her full rate of pay for the position she was in before
the transfer for the hours that she works in the risk period. New subsection 81(5) retains the
existing provision in section 81(7) and provides that should the employees pregnancy end
before the end of the risk period, the risk period ends when the pregnancy ends.
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Family-Friendly Measures - Schedule 1
73. New section 81A deals with the entitlement to paid no safe job leave. Under new
subsection 81A(1), if section 81 of the FW Act applies to a pregnant employee, there is no safe
job available, the employee is entitled to unpaid parental leave and has complied with the
relevant notice and evidence requirements for taking unpaid parental leave then the employee is
entitled to ,,paid no safe job leave for the duration of the risk period. This provision reflects the
existing entitlement prior to the commencement of this section.
74. New subsection 81A(2) requires an employer to pay the employee who takes no safe
job leave at the employees base rate of pay (as defined in section 16 of the FW Act) for the
employees ordinary hours of work in the risk period. This provision reflects the existing
entitlement prior to the commencement of this section.
75. Item 30 inserts new section 82A, which deals with the entitlement to unpaid no safe job
leave. Under new subsection 82A(1), if section 81 of the FW Act applies to a pregnant
employee, but the employee is not entitled to unpaid parental leave and there is no safe job
available, the employee is entitled to ,,unpaid no safe job leave for the duration of the risk
period. If required by the employer, the employee is required to give the employer evidence that
would satisfy a reasonable person of the pregnancy. New subsection 82A(2) provides that an
employer may require the evidence referred to in paragraph 82(1)(c) of the FW Act to be in the
form of a medical certificate. The evidence requirements reflect existing arrangements and the
requirements for ,,paid no safe job leave.
76. Item 25 inserts references to ,,unpaid no safe job leave in sections 67(1) and (2)
consequential to item 30, to clarify that the eligibility rules in section 67 do not apply to unpaid
no safe job leave.
Illustrative examples
Stephanie is a pregnant employee who has been working full-time with her employer Brett for
three years and is entitled to unpaid parental leave. She has applied for unpaid parental leave and
has given at least 10 weeks written notice and a medical certificate in accordance with the
notice and evidence requirements in section 74.
Ten weeks before the expected date of birth, Stephanie provides Brett with a medical certificate
stating that she is fit to continue working, but that it is inadvisable for her to continue working in
her present position because of hazards connected with the position.
If Brett is not able to transfer Stephanie to a safe job because there is no appropriate safe job
available, then Stephanie can take paid no safe job leave for the risk period, which may extend
until the birth of the child.
Leanne is a pregnant employee who has been working full-time with her employer Luke for
eight months and is not entitled to unpaid parental leave. Leanne provides Luke with a medical
certificate stating that she is fit to continue working, but that it is inadvisable for her to continue
working for the next couple of weeks in her present position because of risks arising out of her
pregnancy.
If Luke is not able to transfer Leanne to a safe job because there is no appropriate safe job
available, then Leanne can take unpaid no safe job leave for the risk period. At the end of the risk
period, Leanne is entitled to return to her position.
77. Item 26 repeals and substitutes the second legislative note after subsection 71(3),
consequential on the amendments in item 29. The new note alerts the reader to new sections 81,
81A and 82A of the FW Act.
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Family-Friendly Measures - Schedule 1
78. Item 27 repeals subparagraph 73(2)(c)(ii) of the FW Act and substitutes new
subparagraph 73(2)(c)(ii).
79. Paragraph 73(2)(c) sets out the circumstances in which an employer may require a
pregnant employee to start unpaid parental leave. This may be as soon as practicable within
6 weeks before the expected date of birth where the employee is certified as fit for work, but a
medical certificate indicates that it is inadvisable for the employee to continue in her present
position, and the employee is not otherwise entitled to transfer to a safe job or to paid no safe job
leave.
80. New subparagraph 73(2)(c)(ii) is consequential upon the changes to the transfer to a
safe job provisions. The effect of this subparagraph is to clarify that the circumstances in which
an employee is not otherwise entitled to transfer to a safe job as provided for in current
subparagraph 73(2)(c)(ii) are that the employee has not complied with the notice and evidence
requirements in section 74 of the FW Act for taking unpaid parental leave.
81. Item 28 repeals and substitutes the legislative note after subsection 73(2) of the
FW Act, consequential on the amendments in items 29 and 30. The new note reminds the reader
that if the medical certificate contains a statement as referred to in subparagraph 73(2)(c)(i) and
the employee has complied with the notice and evidence requirements in section 74 of the
FW Act, the employee is entitled to be transferred to a safe job under section 81 or to paid no
safe job leave under section 81A of the FW Act.
Application of amendments
82. Schedule 7 inserts new Schedule 4 to the FW Act. Item 6 of new Schedule 4 to the
FW Act provides for the amendments made by Part 5 of Schedule 1 to the Bill to apply in
relation to evidence that is given under section 81 of the FW Act after the commencement of this
Part.
Fair Work Amendment Bill 2013 30 Senate
Modern awards objective - Schedule 2
SCHEDULE 2 - MODERN AWARDS OBJECTIVE
Fair Work Act 2009
Item 1 - After paragraph 134(1)(d)
83. Section 134 of the FW Act sets out the modern awards objective, which requires the
FWC to ensure that modern awards, together with the National Employment Standards, provide
a fair and relevant minimum safety net of terms and conditions, taking into account the factors
set out in paragraphs 134(1)(a) - (h).
84. Item 1 inserts new paragraph 134(1)(da) of the FW Act, which amends the modern
awards objective so that FWC must take into account the need to provide additional
remuneration for:
employees working overtime;
employees working unsocial, irregular or unpredictable hours;
employees working on weekends or public holidays; or
employees working shifts.
Application of amendment
85. Schedule 7 of the Bill inserts new Schedule 4 to the FW Act. Item 7 of new Schedule 4
provides that the amendment made by Schedule 2 to the Bill applies in relation to a modern
award that is made or varied after the commencement of that Schedule.
Fair Work Amendment Bill 2013 31 Senate
Anti-bullying measure - Schedule 3
SCHEDULE 3 - ANTI-BULLYING MEASURE
Overview
86. The amendments in Schedule 3 to the Bill are part of the Governments response to the
House of Representatives Standing Committee on Education and Employment Inquiry report
Workplace Bullying We just want it to stop (Committee recommendations 1 and 23).
Schedule 3 amends the FW Act to include a new Part 6-4B to enable a worker who is bullied at
work to apply to the FWC for an order to stop the bullying.
87. The Government announced the House of Representatives Committee Inquiry into
workplace bullying in May 2012 in response to increasing community concerns about the impact
of bullying across workplaces and industries. The Committee completed its inquiry and tabled its
report, Workplace Bullying We just want it to stop, in November 2012. The Committee made
23 recommendations to eliminate and prevent bullying in the workplace and support workers and
employers to respond more effectively to allegations of bullying.
88. One of the key issues highlighted by the Committee was the difficulty many workers
face in trying to find a quick way to stop bullying so they do not suffer further harm or injury.
The Committee recommended that the Government provide an individual right of recourse for
persons who are bullied at work to help resolve the matter quickly and inexpensively.
89. The amendments implement the Governments response to the Committees
recommendation, by enabling a worker who reasonably believes that they have been bullied at
work to apply to the FWC for an order.
90. The FWC is required to start dealing with a matter within 14 days after the application
is made. If the FWC is satisfied that the worker has been bullied, and there is a risk that the
worker will continue to be bullied, it may make an order to prevent the worker being bullied at
work. The power of the FWC to make an order does not extend to ordering reinstatement of a
person or the payment of compensation or a pecuniary amount.
91. The FWC may refer a matter to a work health and safety (WHS) regulator where it
considers this necessary and appropriate.
92. In making its recommendation the Committee sought to emphasise that
WHS regulators should not perceive individual remedies as a replacement for penalties
enforceable under WHS and criminal legislation. The amendments in Schedule 3 are not
intended to preclude investigation and prosecutions under WHS and criminal law.
Fair Work Act 2009
Item 1 - After subsection 9(5A)
93. This item amends the Guide to the FW Act in Division 3 of Part 1-1 of the Act. A
consequential amendment is made to section 9 to include a reference to new Part 6-4B.
Item 2 - Section 12
94. This item adds a number of terms to the dictionary set out at section 12 of the FW Act.
The definitions link to definitions that are contained in Part 6-4B.
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Anti-bullying measure - Schedule 3
Item 3 - Subsection 539(2) (at the end of the table)
95. This item amends the table of civil remedy provisions in section 539 of the FW Act to
include a reference to the new civil remedy provision in Part 6-4B (see new section 789FG). The
table identifies, in relation to each civil remedy provision in the FW Act, who has standing to
apply for an order, the courts to which an application for an order may be made, and the
maximum penalty that may be imposed by a court.
96. An application for an order in relation to contravention of the civil remedy provision in
new section 789FG may be made by a person affected by the contravention, an inspector or an
industrial association. An application may be made to the Federal Court, the Federal Magistrates
Court or an ,,eligible State or Territory court. The maximum penalty that can be imposed by the
court on an individual is 60 penalty units.
Item 4 - At the end of subsection 576(1)
97. Section 576 of the FW Act sets out the functions of the FWC. Subsection (1) lists the
broad areas in which the FWC has functions by reference to other parts of the FW Act. This item
inserts a reference to the new functions of the FWC in relation to workers bullied at work
(contained in Part 6-4B).
Item 5 - At the end of subsection 675(2)
98. Section 675 of the FW Act provides that it is an offence for a person to engage in
conduct which contravenes an order of the FWC, except for the orders set out in subsection (2).
This item includes a reference to an order made by the FWC to stop bullying (made under
Part 6-4B) in subsection 675(2), with the effect that breach of an order will not be an offence. A
person must not contravene an order made under Part 6-4B (see new section 789FG). This is a
civil remedy provision.
Item 6 - After Part 6-4A
99. This item inserts Part 6-4B into the FW Act. New Part 6-4B of the FW Act establishes
a process to allow a worker who is being bullied at work to apply to the FWC for an order to stop
that bullying.
Part 6-4B--Workers bullied at work
Division 1 - Introduction
New section 789FA - Guide to this Part
100. This section includes a guide to new Part 6-4B.
New section 789FB - Meanings of employee and employer
101. This section clarifies that in this Part, the terms ,,employee and ,,employer have their
ordinary meanings.
Division 2 - Stopping workers being bullied at work
New section 789FC - Application for an FWC order to stop bullying
102. New subsection 789FC(1) provides that a worker who reasonably believes they have
been bullied at work may apply to the FWC for an order to stop the bullying under new
section 789FF. The term ,,bullied at work is defined in section 789FD.
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Anti-bullying measure - Schedule 3
103. New subsection 789FC(2) provides that the term ,,worker has the same meaning as in
the Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence
Force. The WHS Act adopts a broad definition of ,,worker defining the term in section 7. The
term extends to persons who carry our work in any capacity for a ,,person conducting a business
or undertaking (PCBU), including as an employee, a contractor, a subcontractor, an outworker,
an apprentice, a trainee, a student gaining work experience or a volunteer. The WHS Act
definition of worker also extends to members of the Defence Force, members of the AFP and
Commonwealth statutory office holders.
104. The effect of excluding members of the Defence Force from the definition of ,,worker
in subsection 789FC(2) is that those members cannot seek orders from the FWC. This recognises
the unique nature of service in the Defence Force (which is a disciplined force that is called upon
to undertake service in dangerous operating environments) and the need to maintain the integrity
of its command structure.
105. Section 5(7) of the WHS Act excludes volunteer associations from the definition of a
PCBU in that Act. The effect of this is that members of volunteer associations are not captured
by the definition of ,,worker in the WHS Act and will not fall within the scope of these
provisions. Regulations made under section 5 of the WHS Act also exclude from the definition
of PCBU, strata bodies corporate and incorporated volunteer associations (Regulation 7 of the
Work Health and Safety Regulations 2011).New subsection 789FC(3) requires an application to
the FWC to be accompanied by the prescribed fee (if any).
106. New subsection 789FC(4) provides that the application fee, the method for indexing the
fee and the circumstances in which all or part of the fee may be waived or refunded may be
prescribed by regulation.
New section 789FD - When is a worker bullied at work?
107. New subsection 789FD(1) provides that a worker is bullied at work if, while the worker
is engaged by a constitutionally-covered business, another individual, or group of individuals,
repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health
and safety.
108. This definition reflects the definition of workplace bullying that was recommended in
the Workplace Bullying We just want it to stop report. The Committee considered the existing
definitions used by State, Territory and federal jurisdictions and expert evidence and concluded
that there were three criteria that were most helpful in defining bullying behaviour - the
behaviour has to be repeated, unreasonable and cause a risk to health and safety.
109. The Committee went on to note that ,,repeated behaviour refers to the persistent nature
of the behaviour and can refer to a range of behaviours over time and that ,,unreasonable
behaviour is behaviour that a reasonable person, having regard to the circumstances may see as
unreasonable (in other words it is an objective test). This would include (but is not limited to)
behaviour that is victimising, humiliating, intimidating or threatening.
110. New subsection 789FD(1) covers bullying behaviours carried out by an individual or a
group of two or more individuals.
111. The Committee also found that balanced against this definition is the need for managers
to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable
management action when carried out in a reasonable manner will not result in a person being
,,bullied at work.
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Anti-bullying measure - Schedule 3
112. Persons conducting a business or undertaking have rights and obligations to take
appropriate management action and make appropriate management decisions. They need to be
able to make necessary decisions to respond to poor performance or if necessary take
disciplinary action and also effectively direct and control the way work is carried out. For
example, it is reasonable for employers to allocate work and for managers and supervisors to
give fair and constructive feedback on a workers performance. These actions are not considered
to be bullying if they are carried out in a reasonable manner that takes into account the
circumstances of the case and do not leave the individual feeling (for example) victimised or
humiliated.
113. The provisions in this Part only apply where the worker being ,,bullied at work is at
work in a constitutionally covered business. New subsection 789FD(3) defines the term
,,constitutionally-covered business to mean a business or undertaking (within the meaning of
section 5 of the WHS Act):
where the person is a ,,constitutional corporation, the Commonwealth, or a ,,Commonwealth
authority, or a body corporate incorporated in a Territory; or
the person is conducting a business or undertaking principally in a Territory or
Commonwealth place.
114. The terms ,,constitutional corporation and ,,Commonwealth authority are defined in
section 12 of the FW Act.
New section 789FE - FWC to deal with applications promptly
115. New subsection 789FE(1) provides that the FWC must start to deal with an application
under new section 789FC within 14 days after the application is made. This may include the
FWC taking steps to inform itself of the matters under section 590 of the FW Act, conducting a
conference under section 592 of the FW Act or deciding to hold a hearing under section 593 of
the FW Act.
116. Section 590 of the FW Act provides the FWC with flexibility to inform itself as it
considers appropriate in relation to an application for an order to stop the bullying. This may
include contacting the employer or other parties to the application, conducting a conference or
holding a formal hearing. In the course of dealing with a matter, the FWC may make a
recommendation to the parties or express an opinion.
117. The FWC may also refer a matter to a WHS regulator or another regulatory body.
Section 655 of the FW Act enables the President to authorise the disclosure of information
acquired by the FWC in accordance with that section.
118. New subsection 789FE(2) permits the FWC to dismiss a workplace bullying
application if it considers that the application might involve matters relating to Australias
defence, national security, or existing or future covert or international operations of the AFP.
New section 789FF - FWC may make orders to stop bullying
119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate
to prevent a worker from being bullied at work by an individual or group of individuals. Before
an order can be made, a worker must have made an application to the FWC under new section
789FC and the FWC must be satisfied that the worker has been bullied at work by an individual
or group of individuals. There must also be a risk that the worker will continue to be bullied at
work by the individual or group. Orders will not necessarily be limited or apply only to the
employer of the worker who is bullied, but could also apply to others, such as co-workers and
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Anti-bullying measure - Schedule 3
visitors to the workplace. Orders could be based on behaviour such as threats made outside the
workplace, if the threats relate to work.
120. The power of the FWC to grant an order is limited to preventing the worker from being
bullied at work, and the focus is on resolving the matter and enabling normal working
relationships to resume. The FWC cannot order reinstatement or the payment of compensation or
a pecuniary amount.
121. Examples of the orders that the FWC may make include an order requiring:
the individual or group of individuals to stop the specified behaviour;
regular monitoring of behaviours by an employer;
compliance with an employers workplace bullying policy;
the provision of information and additional support and training to workers;
review of the employers workplace bullying policy.
122. New subsection 789FF(2) provides that, when considering the terms of the order, the
FWC can take into account any factors that it considers relevant, but must have regard to the
following (to the extent that the FWC is aware):
any final or interim outcomes of an investigation into the matter that is being undertaken by
another person or body;
any procedures available to the worker to resolve grievances or disputes;
any final or interim outcomes arising from any procedures available to the worker for
resolving grievances or disputes.
123. These factors may be used by the FWC to frame the order in a way that has regard to
compliance action being taken by the employer or a health and safety regulator or another body,
and to ensure consistency with those actions.
New section 789FG - Contravening an order to stop bullying
124. New section 789FG provides that a person to whom an order to stop bullying applies
must not contravene a term of that order. The note to this provision explains that this clause is a
civil remedy provision.
125. The table in section 539 of the FW Act identifies who has standing to apply for an
order, the courts to which an application for an order may be made, and the maximum penalty
that may be imposed by a court for all civil remedy provisions in the FW Act (see new table
item 38, as inserted by item 3 of this Schedule).
New section 789FH - Actions under work health and safety laws permitted
126. New section 789FH provides that section 115 of the WHS Act and corresponding
WHS laws do not apply in relation to an application for an order to stop bullying made under
new section 789FC.
127. Section 115 of the WHS Act prohibits the bringing of civil proceedings in relation to
discriminatory or coercive conduct under the WHS Act if a person has already commenced a
proceeding or made an application or complaint in relation to the same matter under a law of the
Commonwealth or a State. As the Explanatory Memorandum for the WHS Act notes
(paragraph 389), this provision is intended to ,,ensure that a person may not initiate multiple
actions in relation to the same matter under two or more laws of that jurisdiction.
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Anti-bullying measure - Schedule 3
128. This item ensures that access to these remedies is not blocked in circumstances where a
person has made an application to the FWC for an order to stop bullying. If a worker suffers
discrimination, adverse action or dismissal as a result of raising a bullying matter, they will
continue to be entitled to pursue remedies under the FW Act or the WHS Act.
129. This is consistent with the Committees recommendation that all workers who have
been bullied should have access to a quick and cost-effective individual remedy. The Committee
acknowledged that workplace bullying can be addressed through many existing regulatory
avenues; however, some of these avenues were not tailored specifically to address bullying, and
in some instances did not provide a remedy for a bullied worker. The Committee recognised in
some instances it is appropriate that the bullying matter be pursued through other available
avenues, including workers compensation or criminal law, to ensure a fair and just outcome.
New section 789FI - This Part is not to prejudice Australia's defence, national security etc.
130. Under the WHS Act the Defence Force, the AFP and Australias security agencies have
duties to ensure, so far as reasonably practicable, the health and safety of Defence Force, AFP
and security personnel by managing risks posed by bullying (and other risks to health and
safety). However, sections 12C, 12D and 12E of the WHS Act provide that nothing in that Act
requires or permits a person to take any action, or to refrain from taking any action, that would
be, or could reasonably be expected to be, prejudicial to Australias national security, defence or
existing or future covert or international operations of the AFP (these terms are defined in
section 12E of the WHS Act).
131. Further, sections 12C and 12D of the WHS Act enable the Director-General of
Security, the Director-General of ASIS and the Chief of the Defence Force to declare by
legislative instrument, with the approval of the Minister for Employment and
Workplace Relations, that specified WHS Act provisions do not apply, or apply with
modifications, in relation (respectively) to:
persons who carry out work for the Director-General of Security or the Director-General
of ASIS; or
specified activities, specified members of the Defence Force, or Defence Force members
included in a specified class.
132. These WHS Act provisions recognise the unique nature of the operating environments
of Australias defence and security personnel. The considerations that underpin these provisions
are also relevant to the way in which workplace bullying, as a risk to health and safety, will be
addressed in the FW Act. The Bill reflects these considerations by limiting and qualifying the
operation of the workplace bullying provisions in relation to the Defence Force, Australias
security agencies and the AFP.
133. New section 789FI provides that nothing in Part 6-4B of the FW Act requires or
permits a person to take, or to refrain from taking, any action if the taking of the action, or the
refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to
Australias defence, national security, or existing or future covert or international operations of
the AFP.
New section 789FJ - Declarations by the Chief of the Defence Force
134. New section 789FJ provides for the Chief of the Defence Force to declare by legislative
instrument, if the Minister for Employment and Workplace Relations approves, that all or
specified provisions of Part 6-4B of the Act do not apply in relation to specified activities.
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Anti-bullying measure - Schedule 3
New section 789FK - Declarations by the Director-General of Security
135. New section 789FK provides for the Director-General of Security to declare by
legislative instrument, if the Minister for Employment and Workplace Relations approves, that
all or specified provisions of Part 6-4B of the Act do not apply in relation to persons carrying out
work for the Director-General of Security.
New section 789FL - Declarations by the Director-General of ASIS
136. New section 789FL provides for the Director-General of ASIS to declare by legislative
instrument, if the Minister for Employment and Workplace Relations approves, that all or
specified provisions of Part 6-4B of the Act do not apply in relation to persons carrying out work
for the Director-General of ASIS.
Application of amendments
137. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 8 of new Schedule 4
provides that the amendments made by this Part apply in relation to an application that is made
under new section 789FC after the commencement of the amendments.
Fair Work Amendment Bill 2013 38 Senate
Conferences - Schedule 3A
SCHEDULE 3A - CONFERENCES
Fair Work Act 2009
Item 1 - At the end of section 592
Item 2 - Subsection 595(5)
138. Items 1 and 2 amend sections 592 and 595 of the FW Act (respectively) to clarify the
FWCs ability to conciliate, mediate, express opinions and make recommendations in
circumstances other than when dealing with disputes under the Act.
139. The FW Act currently enables the FWC to inform itself as it considers appropriate
(section 590), to require attendance at conferences for the purpose of exercising its powers and
functions (section 592) and to decide how, when and where matters are dealt with (section 589).
In this context conciliation and mediation etc. occur in a range of matters (e.g. in applications for
orders for modern award variations, enterprise agreement approvals and unfair dismissal
remedies) to enable quick resolution of issues wherever possible. This approach is also
envisaged for workplace bullying applications.
140. The FWC can deal with disputes where expressly authorised to do so by another
provision of the FW Act (subsection 595(1)). Various provisions of the FW Act authorise the
FWC to deal with disputes (e.g. about bargaining, right of entry, stand down, alleged
contraventions of the general protections, and disputes arising under modern awards or enterprise
agreements). Subsection 595(2) provides for the FWC to conciliate, mediate, express opinions
and make recommendations when dealing with a dispute. In limited circumstances the FWC can
arbitrate disputes (e.g. under subsection 240(4) by consent of the parties). Subsection 595(5)
provides that the FWC cannot conciliate, mediate, express opinions, make recommendations or
arbitrate in matters before it except as authorised by section 595.
141. Item 1 of Schedule 3A amends section 592 to clarify some of the common functions
that the FWC can perform. The functions referred to in the provision include to conciliate,
mediate, express opinions or make recommendations at a conference, without limiting what the
FWC may do at a conference (such as informing itself or making decisions) in the range of
matters that come before it. This amendment clarifies the FWCs powers and would not confer
any additional determinative powers or functions on the FWC, such as arbitration.
142. Item 2 of Schedule 3A is consequential on the amendment made by item 1 and reflects
the FWCs ability under that amendment to conciliate, mediate, express opinions or make
recommendations at a conference. As amended by item 2, subsection 595(5) means that the
FWC can only deal with a dispute by arbitration (in accordance with subsection 595(3)) where it
is expressly authorised to do so under another provision of the Act, and cannot arbitrate in other
matters.
Application of amendments
143. Item 1 of Schedule 7 inserts new Schedule 4 into the FW Act. Item 8A of new
Schedule 4 provides that the amendments made by new Schedule 3A to the Bill apply in relation
to matters arising before or after the commencement of that Schedule, whether or not a
conference starts to be conducted in relation to the matter before or after that commencement.
Fair Work Amendment Bill 2013 39 Senate
Right of Entry - Schedule 4
SCHEDULE 4 - RIGHT OF ENTRY
Overview
144. Part 3-4 of the FW Act confers rights on officials of organisations who hold entry
permits to enter premises and exercise certain powers while on those premises. The object of the
Part is to establish a framework under which permit holders may enter premises for investigation
and discussion purposes, which appropriately balances the rights of organisations to represent
their members in the workplace, the right of employees to be represented at work and the right of
occupiers of premises and employers to go about their business without undue inconvenience.
145. The Bill will make amendments to:
provide for interviews and discussions to be held in rooms or areas agreed to by the
occupier and permit holder, or in the absence of agreement, in any room or area in which
one or more of the persons who may be interviewed or participate in the discussions
ordinarily take meal or other breaks and is provided by the occupier for that purpose;
give the FWC capacity to deal with disputes about the frequency of visits to premises for
discussion purposes;
facilitate, where agreement cannot be reached, accommodation and transport arrangements
for permit holders in remote areas and to provide for limits on the amounts that an occupier
can charge a permit holder under such arrangements to cost recovery; and
give the FWC capacity to deal with disputes in relation to accommodation and transport
arrangements and ensure appropriate conduct by permit holders while being accommodated
or transported under an accommodation or transport arrangement.
Fair Work Act 2009
146. Part 3-4 of the FW Act confers rights on officials of organisations who hold entry
permits to enter premises and exercise certain powers while on those premises. Permit holders
may enter premises for investigation and discussion purposes. Schedule 4 amends Part 3-4 in
relation to the particular location of discussions and interviews and transport and accommodation
arrangements for the facilitation of entry to premises in remote areas. The Schedule also amends
the FWCs dispute settlement powers in relation to transport and accommodation arrangements
and frequency of entry to hold discussions.
Item 1 - Section 12
147. Item 1 inserts signpost definitions of ,,accommodation arrangement and ,,transport
arrangement into the dictionary in section 12 and refers to their definitions in new sections
521A and 521B respectively.
Item 2 - At the end of section 478
148. Item 2 inserts an explanation of new Division 7 in the Guide to Part 3-4 to deal with
accommodation and transport arrangements in remote areas.
Item 3 - At the end of subsection 481(1)
Item 4 - Subsection 483A(1) (note)
Item 5 - At the end of subsection 483A(1)
Item 6 - At the end of section 484
Fair Work Amendment Bill 2013 40 Senate
Right of Entry - Schedule 4
Item 8 - Section 500 (note)
Item 9 - At the end of section 500
149. Items 3 and 5 insert notes to subsection 481(1) and subsection 483A(1), and
respectively to refer the reader to:
the FWCs power under section 508 to deal with the misuse of rights by a permit holder or
organisation; and
obligations on persons under sections 501 and 502 not to refuse or unduly delay entry by a
permit holder, or intentionally hinder or obstruct a permit holder.
150. Item 6 inserts notes to section 484 to refer the reader to:
the FWCs power under section 508 to deal with the misuse of rights by a permit holder or
organisation;
obligations on persons under sections 501 and 502 not to refuse or unduly delay entry by a
permit holder, or intentionally hinder or obstruct a permit holder; and
the requirement in paragraph 487(1)(b) to provide notice to the occupier for discussion
purposes and the fact that once a permit holder has provided such notice, he or she may hold
discussions with any eligible person on the premises.
151. Item 9 inserts a note to section 500 to refer the reader to:
the FWCs power under section 508 to deal with the misuse of rights by a permit holder or
organisation; and
obligations on persons under section 502 not to intentionally hinder or obstruct a permit
holder.
152. Items 4 and 8 renumber existing notes.
Item 7 - Section 492
153. Section 492 deals with the conduct of interviews or discussions in a particular location.
This item repeals and replaces existing section 492 of the FW Act. New subsection 492(1)
provides that the permit holder must conduct interviews or hold discussions in the rooms or areas
of the premises agreed with the occupier of the premises.
154. New subsections 492(2) and (3) provide that if there is no agreement, the default
location for interviews and discussions will any room or area in which one or more of the
persons who may be interviewed or participate in the discussions ordinarily take meal or other
breaks and is provided by the occupier for that purpose. The requirement means, for example,
that a permit holder would not be authorised to hold discussions in a personal office or
workspace or a room or location which is not provided for or used for meals or other breaks
unless it is agreed.
155. Notes to new section 492 refer the reader to:
the FWCs power under section 508 to deal with the misuse of rights by a permit holder or
organisation; and
obligations on persons under section 502 not to intentionally hinder or obstruct a permit
holder.
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Right of Entry - Schedule 4
156. An example of a misuse of rights under section 508 in these circumstances may be
where a permit holder repeatedly seeks to have discussions with a person in a lunch room to
encourage that person to become a member of an organisation when the person has made it clear
to the permit holder that they do not wish to participate in such discussions.
157. This item also inserts new section 492A, which substantively replicates existing
paragraph 492(1)(b), which requires a permit holder to comply with any reasonable request made
by an occupier of premises that a permit holder take a particular route to reach a room or area for
interviews or discussions determined under new section 492 (subsection 492A(1)). The request
must be a reasonable request. A permit holder must comply with a reasonable request otherwise
she or he will not be authorised to enter or remain on the premises because of the operation of
section 486.
158. A note to new subsection 492A(1) alerts the reader to the FWCs powers under
section 505 to deal with a dispute about whether a request is reasonable.
159. New subsection 492A(2) clarifies that a request to take a particular route to reach that
location is not unreasonable only because the route is not the one the permit holder would have
chosen.
160. Additional circumstances in which a request is or is not reasonable may be prescribed
by regulations (see new subsection 492A(3)). This replicates a regulation making power in
existing subsection 492(4), which has not been utilised to date.
Item 10 - Subsection 505(1)
161. This item repeals and replaces subsection 505(1) of the FW Act. Section 505 allows the
FWC to deal with a dispute about the operation of this Part. New subsection 505(1) is modelled
on existing subsection 505(1) and provides a list of the kinds of disputes with which the FWC
may deal. The list is non-exhaustive and is not intended to be a comprehensive list of all the
matters that would constitute a dispute about the operation of this Part.
162. Specific examples of disputes that the FWC may deal with are set out in new
subsection 505(1) and include disputes about:
whether a request under section 491, 492A or 499 is reasonable;
when a right of the kind referred to in section 490 may be exercised on premises in remote
areas within the meaning of subsections 521C(1) or 521D(1), despite section 490;
whether accommodation is reasonably available (see new subsection 521C(1)) or premises
are reasonably accessible (see new subsection 521D(1));
whether providing accommodation or transport would cause the occupier of premises undue
inconvenience (see new paragraphs 521C(2)(a) and 521D(2)(a)); or
whether a request to provide accommodation or transport is made within a reasonable period
(see new paragraphs 521C(2)(c) or 521D(2)(c)).
163. Notes to new section 505(1) refer the reader to the matters dealt with in section 490,
section 491, new section 492A, section 499, new section 521C and new section 521D.
Item 11 - Subsection 505(5)
164. This item repeals and replaces subsection 505(5) of the FW Act. New subsection
505(5) is modelled on existing subsection 505(5) and provides that when the FWC is dealing
with a dispute about the operation of this Part, it must not confer rights on a permit holder that
are in addition to or inconsistent with rights exercisable in accordance with Division 2, 3 or 7 of
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Right of Entry - Schedule 4
Part 3-4. This limitation on the exercise of the FWCs powers does not apply to disputes about
the matters set out in paragraphs 505(5)(a)-(e):
whether a request under section 491, 492A or 499 is reasonable;
when a right of the kind referred to in section 490 may be exercised on premises in remote
areas within the meaning of subsections 521C(1) or 521D(1), despite section 490;
whether accommodation is reasonably available (see new subsection 521C(1)) or premises
are reasonably accessible (see new subsection 521D(1));
whether providing accommodation or transport would cause the occupier of premises undue
inconvenience (see new paragraphs 521C(2)(a) and 521D(2)(a)); or
whether a request to provide accommodation or transport is made within a reasonable period
(see new paragraphs 521C(2)(c) or 521D(2)(c)).
Item 12 - After section 505
165. This item inserts new section 505A. The effect of this item is to enable the FWC to deal
with a dispute about frequency of entry to hold discussions and is modelled on existing
section 505.
166. The FWC will be able to deal with a dispute if a permit holder or permit holders from
the same organisation enter premises under section 484 to hold discussions with one or more
employees or TCF award workers, and an employer or occupier disputes the frequency with
which the permit holder or permit holders from the same organisation enter the premises
(see new subsection 505A(1)).
167. In dealing with a dispute, new section 505A allows the FWC to make any order it
considers appropriate to resolve the dispute, including an order to suspend, revoke or impose
conditions on entry permits or the future issue of entry permits to one or more persons
(see subsection 505A(3)).
168. The FWC may only make an order under section 505A if it is satisfied that the
frequency of entry by the permit holder or permit holders from the same organisation would
require an unreasonable diversion of the occupiers critical resources (see new subsection
505A(4)). This is intended to be an appropriately high threshold since disputes under new
section 505A have the potential to displace a permit holders legitimate right to enter premises
for authorised purposes, in the absence of any intentional misbehaviour or wrongdoing by the
permit holder. What will amount to an unreasonable diversion of an occupiers critical resources
will be for the FWC to determine on the particular circumstances before it.
169. The FWC is empowered to take action under this section of its own motion (see new
paragraph 505A(5)(a)), or on application by those persons listed in new paragraph 505A(5)(b),
provided the dispute relates to them.
170. When dealing with a dispute under section 505A, the FWC must have regard to fairness
between the parties to the dispute (see new subsection 505A(6)).
Item 13 - At the end of section 506
171. This item amends section 506 to provide that a person who is subject to an order made
under new subsection 505A(3) must comply with the terms of the order.
172. Section 506 is a civil remedy provision under Part 4-1.
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Right of Entry - Schedule 4
Item 14 - At the end of Part 3-4
173. This item inserts new Division 7 into Part 3-4 to deal with circumstances in which
permit holders and/or an organisation and occupiers have been unable to reach agreement on
accommodation and transport arrangements in remote areas. What is a remote area will depend
on the particular circumstances but is limited to circumstances where the only realistic means for
the permit holder to access the premises is by transport provided by the occupier or where the
only accommodation at the location, if it is required, is that provided by the occupier. These
considerations, rather than the actual location of the premises, will be determinative. For
example, if public transport is available to the location, or access can reasonably be achieved via
travel on public roads in the permit holders own vehicle or one provided by the permit holders
organisation, the provisions would not generally apply.
174. New sections 521A and 521B provide definitions of ,,accommodation arrangement and
,,transport arrangement. An ,,accommodation arrangement means an arrangement with an
occupier of premises under which a permit holder is provided with accommodation for the
purpose of assisting the permit holder to exercise rights under Part 3-4 (new section 521A). A
,,transport arrangement means an arrangement with an occupier of premises under which a
permit holder is provided with transport for the purpose of assisting the permit holder to exercise
rights under Part 3-4 (new section 521B). These arrangements may be entered into by an
occupier and an organisation or an occupier and a permit holder.
175. New sections 521C and 521D confer obligations to facilitate accommodation and
transport for permit holders in certain circumstances. In particular, the obligations only apply if
the parties cannot privately agree to an accommodation or transport arrangement.
176. New subsection 521C(1) provides that the obligation to provide accommodation only
applies where a permit holder is seeking to enter premises that are located in a place where
accommodation is not reasonably available to the permit holder, unless the occupier of the
premises on which the rights are to be exercised provides the accommodation, or causes it to be
provided.
177. New subsection 521C(2) requires an occupier of premises in circumstances set out in
subsection 521C(1) to enter into an accommodation arrangement for the purpose of assisting a
permit holder to exercise rights under Part 3-4 in remote areas. However, the facilitative
obligation only applies if:
accommodating the permit holder would not cause the occupier of the premises undue
inconvenience;
the permit holder, or the organisation of which the permit holder is an official, requests the
occupier to provide accommodation;
the request is made within a reasonable period before the accommodation is required; and
the permit holder, and the organisation of which the permit holder is an official, have been
unable to enter into an accommodation arrangement with the occupier by consent.
178. A note to new subsection 521C(2) refers the reader to the FWCs ability to deal with
certain disputes about accommodation arrangements.
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Right of Entry - Schedule 4
179. What will amount to an ,,undue inconvenience will depend on the circumstances and is
a matter for the FWC to determine. Examples of matters that may cause the occupier of premises
undue inconvenience are:
where the premises are an offshore installation and all accommodation quarters on deck are
currently occupied by employees and/or contractors of the occupier; or
where all commercially available accommodation at a remote location is fully occupied, as is
private occupier provided accommodation.
180. In these circumstances, an occupier would not be expected to remove, or cause to be
removed, individuals currently occupying such accommodation to make way for the permit
holder.
181. New subsection 521C(3) limits the fee that may be charged to an organisation or a
permit holder under an accommodation arrangement to no more than is necessary to cover the
costs incurred by the occupier as a direct result of providing the accommodation or causing it to
be provided. It is not intended that incidental costs, such as electricity costs, be included.
182. A note to new subsection 521C(3) informs the reader that this is a civil remedy
provision.
183. New subsection 521D(1) provides that the obligation to provide transport only applies
where a permit holder is seeking to enter premises that are located in a place that is not
reasonably accessible to the permit holder unless the occupier of the premises on which the
rights are to be exercised provides the transport, or causes it to be provided.
184. New subsection 521D(2) requires an occupier of premises in circumstances set out in
subsection 521D(1) to enter into a transport arrangement for the purpose of assisting a permit
holder to exercise rights under Part 3-4 in remote areas if:
transporting the permit holder to the premises would not cause the occupier undue
inconvenience;
the permit holder, or the organisation of which the permit holder is an official, requests the
occupier to provide transport to the premises;
the request is made within a reasonable period before transport is required; and
the permit holder, and the organisation of which the permit holder is an official, have been
unable to enter into a transport arrangement with the occupier by consent.
185. A note to new subsection 521D(2) refers the reader to the FWCs ability to deal with
certain disputes about transport arrangements.
186. It is only intended that an occupier be required to provide transport to the extent that it
is necessary in order to make the premises accessible to the permit holder (see subsection
521D(1)). For example, if it would be reasonable for the permit holder to travel part of the way
using the permit holders own transport or commercially available transport, the occupier would
not be obliged to provide transport for that portion of the permit holders trip to the premises. In
the case of an agricultural property, if it is accessible by road, it would generally be reasonable to
expect the permit holder to drive to the premises in their own vehicle, or one provided by the
permit holders organisation.
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Right of Entry - Schedule 4
187. New subsection 521D(3) limits the fee that may be charged to an organisation or a
permit holder under a transport arrangement to no more than is necessary to cover the costs
incurred by the occupier as a direct result of providing the transport or causing it to be provided.
It is not intended that incidental costs, such as insurance premiums be included. A permit holder
continue to be responsible for ensuring they comply with any workplace health and safety
requirements applying to the occupiers premises.
188. A note to new subsection 521D(3) informs the reader that this is a civil remedy
provision.
189. Various provisions throughout Part 3-4 outline types of conduct that are prohibited
throughout the Part. New subsections 521C(4) and 521D(4) allow the FWC to treat the conduct
of a permit holder while accommodated under an accommodation arrangement or being
transported under a transport arrangement as conduct engaged in as part of the exercise of rights
under Part 3-4. This is to ensure that appropriate standards of conduct are maintained and means,
for example, that conduct of a permit holder whilst travelling under a transport arrangement can
be considered in the context of a misuse of rights application under section 508. New
subsections 521C(4) and 521D(4) apply whether the accommodation or transport arrangement
was entered into by consent or as a requirement of new sections 521C and 521D.
Item 15 - Subsection 539(2) (at the end of the cell at table item 25, column headed "Civil
remedy provision")
190. Item 15 amends the table in subsection 539(2) to include new subsections 521C(3) and
521D(3) in the list of civil remedy provisions at item 25 of the table.
Application of amendments
191. Item 1 of Schedule 7 inserts new Schedule 4 to the FW Act. Item 9 of Schedule 4
provides for:
the amendment in item 7 of Schedule 4 to apply in relation to interviews conducted and
discussions held after the commencement of that item;
the amendments in items 12 and 13 of Schedule 4 to apply in relation to frequency of entry
after the commencement of those items; and
the amendments in items 14 and 15 of Schedule 4 to not apply to arrangements entered into
before the commencement of those items.
Fair Work Amendment Bill 2013 46 Senate
Consent arbitration for general protections and unlawful termination - Schedule 4A
SCHEDULE 4A - CONSENT ARBITRATION FOR GENERAL PROTECTIONS AND
UNLAWFUL TERMINATION
Overview
192. This schedule amends the FW Act to allow the FWC to arbitrate general protections
dismissal disputes under Division 8 of Part 3-1 of the FW Act and unlawful termination disputes
under Division 2 of Part 6-4 of the FW Act, where the parties consent.
193. Consent arbitration is intended to provide a faster, less expensive and less formal
alternative to court proceedings.
194. The FWC will continue to initially deal with disputes other than by arbitration (which
may include conciliation, mediation, expressing an opinion or making a recommendation) and
will still be required to issue a certificate if all reasonable attempts to resolve the dispute by these
means have been, or are likely to be, unsuccessful.
195. The amendments provide that once the FWC has issued a certificate, within 14 days, a
dismissed employee can:
make a general protections or unlawful termination court application (whichever is
appropriate) in relation to the dismissal; or
elect not to proceed further with the dispute; or
with the consent of their former employer, agree that the FWC conduct consent arbitration to
resolve the dispute.
196. The FWC will be able to exercise its general powers when arbitrating and inform itself
as it sees fit. Consistent with its general powers, and the powers available to a court when
determining a general protections or unlawful termination court application, the FWC will also
be able to make any order it considers appropriate.
197. The amendments also deal with procedural matters, including new measures to limit
appeals and provide for costs orders in certain circumstances.
198. The amendments ensure that a dismissed employee will continue to be prevented from
pursuing multiple remedies in relation to the dismissal.
199. The amendments will also align the time limit for making an unlawful termination
application with the time limit of 21 days that applies for making general protections dismissal
and unfair dismissal applications.
Part 1 - General Protections
Fair Work Act 2009
Item 1 - Section 12 (definition of general protections court application)
200. This item amends the signpost definition of general protections court application in the
dictionary in section 12 and refers to its definition in new subsection 368(4).
Item 2 - Subsection 361(1)
201. This item amends existing subsection 361(1) to make it clear that the existing reverse
onus of proof for general protections court proceedings also applies to consent arbitration
proceedings conducted by the FWC.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
Item 3 - Section 365 (heading)
202. This item is a technical amendment to the heading of section 365.
Item 4 - Sections 368, 369, 370 and 371
203. The item repeals and replaces existing sections 368 to 371 and sets out the new
compliance framework for contraventions of Part 3-1 involving dismissal to take account of the
new consent arbitration jurisdiction exercisable by the FWC.
New Section 368 - Dealing with a dismissal dispute (other than by arbitration)
204. New subsection 368(1) provides that if an application is made under section 365, the
FWC must deal with the dispute. The FWCs powers under this section do not include
arbitration.
205. A legislative note to new subsection 368(1) alerts the reader to section 595, which sets
out the FWCs powers when dealing with a dispute. The effect of this provision (and in
particular subsection 595(2)) is that the FWC can deal with the dispute by mediation,
conciliation, making a recommendation or expressing an opinion. The note also makes it clear
that where the FWC forms the view that the dispute is in fact more properly characterised as an
unfair dismissal claim, the FWC can recommend that the dismissed employee make an
application under Part 3-2, which deals with unfair dismissal.
206. New subsection 368(2) provides that any conference held under this section must be
conducted in private. A legislative note to new subsection 368(2) alerts the reader to section 592
which contains procedural rules relating to the conduct of conferences by FWC.
207. New subsection 368(3) provides that if the FWC is satisfied that all reasonable attempts
to resolve the dispute other than by arbitration have been, or are likely to be unsuccessful, then
the FWC must issue a certificate to that effect. This new subsection also provides that if the
FWC considers, taking into account all of the materials before it, that consent arbitration under
new section 369 or a general protections court application, would not have a reasonable prospect
of success, the FWC must advise the parties accordingly.
208. Once a certificate has been issued by the FWC under new subsection 368(3), within
14 days (unless an extension of time is granted), a dismissed employee can:
commence a general protections court application in relation to the dismissal (see new
section 370); or
elect not to proceed further with the dispute; or
with the consent of their former employer, agree that the FWC conduct consent arbitration to
resolve the dispute (see new section 369).
209. New subsection 368(4) defines a general protections court application as an
application to a relevant court under Division 2 of Part 4-1 of the FW Act for orders in relation to
a contravention of Part 3-1.
New Section 369 - Dealing with a dismissal dispute by arbitration
210. New subsection 369(1) enables the FWC to deal with a general protections dismissal
dispute by consent arbitration if the following requirements are met:
the FWC issues a certificate under new paragraph 368(3)(a) in relation to the dispute
(paragraph 369(1)(a));
the parties notify the FWC that they agree to the FWC arbitrating the dispute
(paragraph 369(1)(b)) ;
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Consent arbitration for general protections and unlawful termination - Schedule 4A
the notification is given within 14 days of the certificate being issued, unless the FWC allows
otherwise, and complies with any requirements prescribed by the procedural rules
(paragraph 369(1)(c)); and
sections 726, 728, 729, 730, 731 and 732 do not apply (paragraph 369(1)(d)).
211. Where sections 726, 728, 729, 730, 731 or 732 apply, a person is prevented from
making an application or complaint of a kind referred to in any one of those sections in relation
to the dismissal. The effect of new paragraph 369(1)(d) is that, in such circumstances, the person
is also prevented from proceeding to consent arbitration.
212. A note to new subsection 369(1) informs the reader of the combined effect of
Subdivision B of Division 3 of Part 6-1 and new paragraph 369(1)(d). Particular note is made of
section 727, which sets out the circumstances in which a dismissed employee is prevented from
seeking an alternative remedy in relation to their dismissal when they have elected to have the
dispute dealt with by the FWC.
213. Subsection 595(3) provides that the FWC may only deal with a dispute by arbitration
when it is expressly authorised to do so under another provision of the Act and may make any
orders it considers appropriate. For the purposes of subsection 595(3), new subsection 369(2)
provides that the FWC may deal with a dispute by arbitration, including by making or more of
the orders listed in paragraphs (a) to (e).
214. In dealing with a dispute, the FWC is able to exercise its general powers, including its
powers under section 590 to inform itself as it sees fit.
215. The parties are not generally able to be represented by a lawyer or paid agent unless the
FWC grants permission under subsection 596(2) or if permitted under the procedural rules
(see section 596).
216. New subsection 369(3) provides that a person who is subject to an order of the FWC
made under new subsection 369(2) must comply with the terms of the order.
217. New subsection 369(3) is a civil remedy provision under Part 4-1.
New Section 370 - Taking a dismissal dispute to court
218. New section 370 sets out the two circumstances in which a dismissed employee can
make a general protections court application in relation to a dismissal. They are:
if the FWC has issued a certificate under new paragraph 368(3)(a) in relation to the dispute
and the court application is made within 14 days of the certificate being issued unless the
court allows otherwise (paragraph 370(a)); or
the court application includes an application for an interim injunction (paragraph 370(b)).
This recognises that applicants may decide not to involve the FWC where urgent relief is
sought and the allegations are particularly serious, the facts in dispute are particularly
complex, or the employer is unlikely to agree to consent arbitration.
219. A legislative note alerts the reader to sections 727 and 728, which provide that, if the
parties notify the FWC under new subsection 369(1) that they wish the FWC to arbitrate the
dispute by consent, a general protections court application cannot generally be made in relation
to the dispute unless the FWC application is withdrawn or failed for want of jurisdiction.
220. A further legislative note refers the reader to Brodie-Hanns v MTV Publishing Ltd
(1995) 67 IR 298, in which the Industrial Relations Court of Australia set down principles
relating to the exercise of its discretion under a similarly worded provision to that in new
subparagraph 370(a)(ii).
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Consent arbitration for general protections and unlawful termination - Schedule 4A
Item 5 - Section 372 (heading)
221. This item is a technical amendment to the heading of section 372.
Item 6 - Subdivision C of Division 8 of Part 3-1
222. This item repeals and replaces Subdivision C of Division 8 of Part 3-1.
Subdivision C - Appeals and costs orders
New Section 375A - Appeal rights
223. New section 375A provides limited rights to appeal arbitrated decisions made by the
FWC in relation to general protections dismissal disputes that are similar to the appeal rights that
apply for unfair dismissal decisions (see section 400).
224. The primary provisions dealing with the appeal of decisions are in the FWC provisions
in Part 5-1 of the FW Act. The effect of new section 375A is to make the process for permitting
appeals from decisions under this Division different from the general grounds in section 604 in
two respects. Firstly, the general appeal provisions do not require public interest as a prerequisite
for permitting appeals, whereas new section 375A provides that only appeals in the public
interest can be permitted for general protections matters.
225. Secondly, new subsection 375A(2) limits appeals based on an error of fact to only
allow an appeal where that error is a significant error of fact. This subsection is intended to limit
the FWCs discretion to permit an appeal under subsection 604(1).
226. Sections relevant to appeals from, and reviews of, general protections decisions are also
contained in other provisions of Part 5-1.
227. Section 605 has the effect of empowering the Minister to apply to the FWC for a
review of general protections decisions (other than those made by a Full Bench) if, in the
Ministers opinion, the decisions are contrary to the public interest.
228. Section 606 has the effect of allowing the FWC to stay the operation of the whole or
part of a decision made in relation to a matter arising under Part 3-1 on any terms that FWC
considers are appropriate.
229. Section 607 contains details of the processes for appealing or reviewing decisions,
including those made in relation to a matter arising under Part 3-1.
New Section 375B - Costs orders against parties
230. New section 375B allows the FWC to order costs against a party to a general
protections dismissal dispute (the first party) if it is satisfied that the first party caused the other
party to the dispute to incur costs by an unreasonable act or omission in connection with the
conduct or continuation of the dispute. New section 375B is similar to the costs orders that are
available against parties in relation to unfair dismissal matters (see section 400A).
231. This power to award costs is in relation to the dispute before the FWC and does not
include costs associated with a general protections court application.
232. The power to award costs under new section 375B is not intended to prevent a party
from robustly pursuing or defending a general protections dispute before the FWC. Rather, the
power is intended to address the small proportion of litigants who pursue or defend disputes in
an unreasonable manner. The power is only intended to apply where there is clear evidence of
unreasonable conduct by the first party.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
233. The FWCs power to award costs under subsection 375B(1) is discretionary and is only
exercisable where the first party (whether the applicant or respondent) causes the other party to
incur costs because of an unreasonable act or omission.
234. However, the power to award costs is only available if the FWC is satisfied that the act
or omission by the first party was unreasonable. What is an unreasonable act or omission will
depend on the particular circumstances but it is intended that the power only be exercised where
there is clear evidence of unreasonable conduct by the first party.
235. New subsection 375B(2) provides that the power to award costs against one party in
these circumstances is only exercisable if the other party to the dispute makes an application in
accordance with section 377. New subsection 375B(3) makes it clear that the new power to
award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables
the FWC to make costs orders against a person in certain circumstances, such as where an
application is made vexatiously or without reasonable cause.
New Section 376 - Costs orders against lawyers and paid agents
236. Current section 376 enables the FWC to award costs against a lawyer or paid agent in
certain circumstances where the FWC has granted permission under section 596 for them to
represent a party in a general protections dispute. Under new section 376, this power will no
longer depend on the FWC having granted permission under section 596. New section 376 is
also similar to the costs orders that are available against lawyers and paid agents in relation to
unfair dismissal matters (see section 401).
237. New section 376 will provide a strong deterrent for lawyers and paid agents from
encouraging parties to bring or continue speculative general protections disputes they know have
no reasonable prospect of success. The provision will also deter lawyers or paid agents from
unreasonably encouraging a party to defend a general protections dispute with no reasonable
prospect of success. It will act as a stronger deterrent than the current provision as it will make
lawyers and paid agents subject to the possibility of adverse costs orders even if they are not
granted, or do not seek, permission to represent the party in the dispute before the FWC.
238. New subsection 376(1) provides that the section applies if:
a general protections application to deal with a dispute has been made under section 365
or 372;
a lawyer or paid agent (the representative) has been engaged by a party to represent them in
the dispute; and
the party is required to seek the FWCs permission under section 596 to be represented by
the representative.
239. New subsection 376(2) sets out the grounds on which an order for costs is available
against a representative. Costs are available where the FWC is satisfied that the representative
caused costs to be incurred because:
the representative encouraged the person to start, continue or respond to the dispute and it
should have been reasonably apparent that the person had no reasonable prospect of success
in the dispute (subsection 376(2)(a)); or
of an unreasonable act or omission of the representative in connection with the conduct or
continuation of the dispute (subsection 376(2)(b)).
240. This power to award costs is in relation to the dispute before the FWC and does not
include costs associated with a general protections court application.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
241. An example of where the FWC may award costs against a representative under new
subsection 376(2) is where the representative knows that his or her clients general protection
application is dishonest or without foundation but still actively encourages them to proceed with
the application to try and extract a remedy such as a financial settlement from the employer.
New Section 377 - Applications for costs orders
242. New section 377 replicates existing section 377 and provides that an application for
costs under section 365 or 372 must be made within 14 days after the FWC has finished dealing
with the dispute.
New Section 377A - Schedule of costs
243. New subsection 377A(1) allows for the prescription of a schedule of costs. The term
costs is intended to have its ordinary meaning, namely legal and professional costs,
disbursements and expenses of witnesses (see Cachia v Hanes (1994) 179 CLR 403; Re JJT;
Ex parte Victoria Legal Aid (1998) 195 CLR 184). The purpose of this subsection is to ensure
the FWCs capacity to award legal and professional costs and disbursements includes expenses
arising from the representation of a party by a person or organisation other than on a legal
professional basis.
244. New subsection 377A(2) provides that, if a schedule of costs is prescribed, the FWC is
not restricted in its award of costs to the items of expenditure listed in the schedule. However, if
an item of expenditure appears in the schedule, the FWC cannot make an award of costs above
the rate or amount specified.
New Section 378 - Contravening costs orders
245. New section 378 provides that, where an order made by the FWC under new
sections 375B or 376 applies to a person, that person must not contravene a term of the order.
246. New section 378 is a civil remedy provision under Part 4-1.
Item 7 - Subsection 539(2) (at the end of the cell at table item 11, column 1)
247. This item amends the table in subsection 539(2) to include new subsection 369(3) in the
list of civil remedy provisions at item 11 of the table.
Item 8 - Section 544 (note 1)
Item 9 - Paragraph 601(5)(a)
248. These items are technical amendments consequential to the amendments made by
item 4.
Item 10 - After paragraph 609(2)(e)
249. This item inserts new paragraph 609(2)(ea) to allow the President to make procedural
rules about the requirements of making a notification to the FWC. Such notifications would
include notifications of parties agreement to arbitration by the FWC provided for under new
paragraphs 369(1)(c) and 777(1)(c).
Item 11 - Subparagraph 727(1)(b)(iii)
250. This item is a technical amendment to subparagraph 727(1)(b)(iii) consequential to the
amendments made by item 4.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
Item 12 - After subsection 727(1)
251. This item inserts new subsection 727(1A) into current section 727 to prevent a person
from making an application for another remedy in relation to their dismissal if they have made a
general protections application to the FWC and:
the application has not been withdrawn or failed for want of jurisdiction;
a certificate under new paragraph 368(3)(a) has been issued in relation to the dispute; and
a notification referred to in new paragraphs 369(1)(b) and (c) notifying the FWC that the
parties agree to the FWC arbitrating the dispute has been made.
252. Section 727 is located in Subdivision B of Division 3 of Part 6-1, which deals with
cases where there may be more than one remedy available for the same conduct or
circumstances.
253. Section 725 sets out a general rule that if a person has made an application that falls
within any of sections 726 to 732, they may not bring an application that falls within any of the
other sections.
Part 2 - Unlawful termination
Fair Work Act 2009
254. The following amendments are to take account of the new FWC consent arbitration
jurisdiction that is available for unlawful termination disputes.
Item 13 - Section 12 (definition of unlawful termination court application)
255. This item amends the signpost definition of unlawful termination court application in
the dictionary in section 12 and refers to its definition in new subsection 776(4).
Item 14 - Subsection 539(2) (at the end of the cell at table item 35, column 1)
256. This item amends the table in subsection 539(2) to include new subsection 777(3) in the
list of civil remedy provisions at item 35 of the table.
Item 15 - Section 544 (note 1)
257. This item is a technical amendment consequential to the amendments made by item 19.
Item 16 - Subparagraph 730(1)(b)(iii)
258. This item is a technical amendment to subparagraph 730(1)(b)(iii) consequential to the
amendments made by item 19.
Item 17 - After subsection 730(1)
259. This item inserts new subsection 730(1A) into current section 730 to prevent a person
from making an application for another remedy in relation to their dismissal if they have made
an unlawful termination application to the FWC and:
the application has not been withdrawn or failed for want of jurisdiction;
a certificate under new paragraph 776(3)(a) has been issued in relation to the dispute; and
a notification referred to in new paragraphs 777(1)(b) and (c) notifying the FWC that the
parties agree to the FWC arbitrating the dispute has been made.
260. Section 730 is located in Subdivision B of Division 3 of Part 6-1 which deals with cases
where there may be more than one remedy available for the same conduct or circumstances.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
261. Section 725 sets out the general rule which is that if a person has made an application
that falls within any of sections 726 to 732 then they may not bring an application that falls
within any of the other sections.
Item 18 - Paragraph 774(1)(a)
262. This item amends the time limit for applications made under section 773 to the FWC to
deal with a dispute. The current time limit of 60 days after a persons employment is terminated
is replaced by a time limit of 21 days. This is to align with the time limits that apply to
applications:
made involving dismissals in alleged contravention of the general protections (see
section 366); and
for an unfair dismissal remedy (see section 394).
Item 19 - Sections 776, 777, 778, 779, 780 and 781
263. The item repeals and replaces existing sections 776 to 781 and sets out the new
compliance framework for contraventions of Division 2 of Part 6-4 involving termination of
employment to take account of the new consent arbitration jurisdiction exercisable by the FWC.
New Section 776 - Dealing with a dispute (other than by arbitration)
264. New subsection 776(1) provides that if an application is made under section 773, the
FWC must deal with the dispute. The FWCs powers under this section do not include
arbitration.
265. A legislative note to new subsection 776(1) alerts the reader to section 595, which sets
out the FWCs powers when dealing with a dispute. The effect of this provision (and in
particular subsection 595(2)) is that the FWC can deal with the dispute by mediation,
conciliation, making a recommendation or expressing an opinion.
266. New subsection 776(2) provides that any conference held under this section must be
conducted in private. A legislative note to new subsection 776(2) alerts the reader to section 592
which contains procedural rules relating to the conduct of conferences by FWC.
267. New subsection 776(3) provides that if the FWC is satisfied that all reasonable attempts
to resolve the dispute other than arbitration have been, or are likely to be unsuccessful, then the
FWC must issue a certificate to that effect. This new subsection also provides that if the FWC
considers, taking into account all of the materials before it, that consent arbitration under
section 777 or an unlawful termination court application, would not have a reasonable prospect
of success, the FWC must advise the parties accordingly.
268. Once a certificate has been issued by the FWC under new subsection 776(3), within
14 days (unless an extension of time is granted), a dismissed employee can:
commence an unlawful termination court application in relation to the dismissal (see new
section 778); or
elect not to proceed further with the dispute; or
with the consent of their former employer, agree that the FWC conduct consent arbitration to
resolve the dispute (see new section 777).
269. New subsection 776(4) defines an unlawful termination court application as an
application to a relevant court under Division 2 of Part 4-1 for orders in relation to a
contravention of subsection 772(1).
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Consent arbitration for general protections and unlawful termination - Schedule 4A
New Section 777 - Dealing with a dispute by arbitration
270. New subsection 777(1) enables the FWC to deal with an unlawful termination dispute
by consent arbitration if the following requirements are met:
the FWC issues a certificate under new paragraph 776(3)(a) in relation to the dispute
(paragraph 777(1)(a));
the parties notify the FWC that they agree to the FWC arbitrating the dispute
(paragraph 777(1)(b)) ;
the notification is given within 14 days of the certificate being issued, unless the FWC allows
otherwise, and complies with any requirements prescribed by the procedural rules
(paragraph 777(1)(c)); and
sections 726, 727, 728, 729, 731 and 732 do not apply (paragraph 777(1)(d)).
271. Where sections 726, 727, 728, 729, 731 or 732 apply, a person is prevented from
making an application or complaint of a kind referred to in any one of those sections in relation
to the dismissal. The effect of new paragraph 777(1)(d) is that, in such circumstances, the person
is also prevented from proceeding to consent arbitration.
272. A note to new subsection 777(1) informs the reader of the combined effect of
Subdivision B of Division 3 of Part 6-1 and new paragraph 777(1)(d). Particular note is made of
section 730, which sets out the circumstances in which a dismissed employee is prevented from
seeking an alternative remedy in relation to their dismissal when they have elected to have the
dispute dealt with by the FWC.
273. Subsection 595(3) provides that the FWC may only deal with a dispute by arbitration
when it is expressly authorised to do so under another provision of the Act and may make any
orders it considers appropriate. For the purposes of subsection 595(3), new subsection 777(2)
provides that the FWC may deal with a dispute by arbitration, including by making or more of
the orders listed in paragraphs (a) to (e).
274. In dealing with a dispute, the FWC is able to exercise its general powers, including its
powers under section 590 to inform itself as it sees fit.
275. The parties are not generally able to be represented by a lawyer or paid agent unless the
FWC grants permission under subsection 596(3) or if permitted under the procedural rules
(see section 596).
276. New subsection 777(3) provides that a person who is subject to an order of the FWC
made under new subsection 777(2) must comply with the terms of the order.
277. New subsection 777(3) is a civil remedy provision under Part 4-1.
New Section 778 - Taking a dispute to court
278. New section 778 sets out the two circumstances in which a dismissed employee can
make an unlawful termination court application in relation to a dismissal. These are:
if the FWC has issued a certificate under new paragraph 776(3)(a) in relation to the dispute
and the court application is made within 14 days of the certificate being issued unless the
court allows otherwise (paragraph 778(a)); or
the court application includes an application for an interim injunction (paragraph 778(b)).
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Consent arbitration for general protections and unlawful termination - Schedule 4A
279. A legislative note alerts the reader to sections 730 and 731, which provide that, if the
parties notify the FWC under new subsection 777(1) that they wish the FWC to arbitrate the
dispute by consent, an unlawful termination court application cannot be made in relation to the
dispute unless the FWC application is withdrawn or failed for want of jurisdiction.
280. A further legislative note refers the reader to Brodie-Hanns v MTV Publishing Ltd
(1995) 67 IR 298, in which the Industrial Relations Court of Australia set down principles
relating to the exercise of its discretion under a similarly worded provision to that in new
subparagraph 778(a)(ii).
New Section 779 - Appeal rights
281. New section 779 provides limited rights to appeal arbitrated decisions made by the
FWC in relation to unlawful termination disputes that are similar to the appeal rights that apply
for unfair dismissal decisions (see section 400).
282. The primary provisions dealing with appeal of decisions are in the FWC provisions in
Part 5-1. The effect of new section 779 is to make the process for permitting appeals from
decisions under this Division different from the general grounds in section 604 in two respects.
Firstly, the general appeal provisions do not require public interest as a prerequisite for
permitting appeals, whereas new section 779 provides that only appeals in the public interest can
be permitted for unlawful termination matters.
283. Secondly, new subsection 779(2) limits appeals based on an error of fact to only allow
an appeal where that error is a significant error of fact. This subsection is intended to limit the
FWCs discretion to permit an appeal under section 604(1).
284. Sections relevant to appeals from, and reviews of, unlawful termination decisions are
also contained in Part 5-1.
285. Section 605 has the effect of empowering the Minister to apply to the FWC for a
review of unlawful termination decisions (other than those made by a Full Bench) if, in the
Ministers opinion, the decisions are contrary to the public interest.
286. Section 606 has the effect of allowing the FWC to stay the operation of the whole or
part of a decision made in relation to a matter arising under Division 2 of Part 6-1 on any terms
that FWC considers are appropriate.
287. Section 607 contains details of the processes for appealing or reviewing decisions,
including those made in relation to a matter arising under Division 2 of Part 6-1.
New Section 779A - Costs orders against parties
288. New section 779A allows the FWC to order costs against a party to a dispute (the first
party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an
unreasonable act or omission in connection with the conduct or continuation of the dispute. New
section 779A is similar to the costs orders that are available against parties in relation to unfair
dismissal matters (see section 400A).
289. This power to award costs in relation to the dispute before the FWC and does not
include costs associated with an unlawful termination court application.
290. The power to award costs under new section 779A is not intended to prevent a party
from robustly pursuing or defending a dispute before the FWC. Rather, the power is intended to
address the small proportion of litigants who pursue or defend disputes in an unreasonable
manner. The power is only intended to apply where there is clear evidence of unreasonable
conduct by the first party.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
291. The FWCs power to award costs under subsection 779A(1) is discretionary and is only
exercisable where the first party (whether the applicant or respondent) causes the other party to
incur costs because of an unreasonable act or omission.
292. However, the power to award costs is only available if the FWC is satisfied that the act
or omission by the first party was unreasonable. What is an unreasonable act or omission will
depend on the particular circumstances but it is intended that the power only be exercised where
there is clear evidence of unreasonable conduct by the first party.
293. Subsection 779A(2) provides that the power to award costs against one party in these
circumstances is only exercisable if the other party to the dispute makes an application in
accordance with section 781. Subsection 779A(3) makes clear that the new power to award costs
under subsection 779A(1) operates in addition to subsection 611(2), which enables the FWC to
make costs orders against a person in certain circumstances, such as where an application is
made vexatiously or without reasonable cause.
New Section 780 - Costs orders against lawyers and paid agents
294. Current section 780 enables the FWC to award costs against a lawyer or paid agent in
certain circumstances where the FWC has granted permission under section 596 for them to
represent a party in a dispute. Under new section 780, this power will no longer depend on the
FWC having granted permission under section 596. New section 780 is also similar to the costs
orders that are available against lawyers and paid agents in relation to unfair dismissal matters
(see section 401).
295. New section 780 will provide a strong deterrent for lawyers and paid agents from
encouraging parties to bring or continue speculative disputes under section 773 they know have
no reasonable prospect of success. The provision will also deter lawyers or paid agents from
unreasonably encouraging a party to defend a dispute with no reasonable prospect of success. It
will act as a stronger deterrent than the current provision as it will make lawyers and paid agents
subject to the possibility of adverse costs orders even if they are not granted, or do not seek,
permission to represent the party in the dispute before the FWC.
296. New subsection 780(1) provides that the section applies if:
an application to deal with a dispute has been made under section 773;
a lawyer or paid agent (the representative) has been engaged by a party to represent them in
the dispute, and
the party is required to seek the FWCs permission under section 596 to be represented by
the representative.
297. New subsection 780(2) sets out the grounds on which an order for costs is available
against a representative. Costs are available where the FWC is satisfied that the representative
caused costs to be incurred because:
the representative encouraged the person to start, continue or respond to the dispute and it
should have been reasonably apparent that the person had no reasonable prospect of success
in the dispute (paragraph 780(2)(a)); or
of an unreasonable act or omission of the representative in connection with the conduct or
continuation of the dispute (paragraph 780(2)(b)).
298. This power to award costs in relation to the dispute does not include costs associated
with an unlawful termination court application.
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Consent arbitration for general protections and unlawful termination - Schedule 4A
299. An example of where the FWC may award costs against a representative under new
subsection 780(2) is where the representative knows that his or her clients application under
section 773 is dishonest or without foundation but still actively encourages them to proceed with
the application to try and extract a remedy such as a financial settlement from the employer.
New Section 781 - Applications for costs orders
300. New section 781 replicates existing section 781 and provides that an application for
costs in relation to an application under section 773 must be made within 14 days after the FWC
has finished dealing with the dispute.
New Section 781A - Schedule of costs
301. New subsection 781A(1) allows for the prescription of a schedule of costs. The term
costs is intended to have its ordinary meaning, namely legal and professional costs,
disbursements and expenses of witnesses (see Cachia v Hanes (1994) 179 CLR 403; Re JJT;
Ex parte Victoria Legal Aid (1998) 195 CLR 184). The purpose of this subsection is to ensure
the FWCs capacity to award legal and professional costs and disbursements includes expenses
arising from the representation of a party by a person or organisation other than on a legal
professional basis.
302. New subsection 781A(2) provides that, if a schedule of costs is prescribed, the FWC is
not restricted in its award of costs to the items of expenditure listed in the schedule. However, if
an item of expenditure appears in the schedule, the FWC cannot make an award of costs above
the rate or amount specified.
Item 20 - Section 782
303. This item is a technical amendment to section 782 consequential to the amendments
made by item 19.
Item 21 - Subsection 783(1)
304. This item amends existing subsection 783(1) to make it clear that the existing reverse
onus of proof for unlawful termination court proceedings also applies to consent arbitration
proceedings conducted by the FWC.
Application of amendments
305. Item 1 of Schedule 7 to the Bill inserts new Schedule 4 into the FW Act. Item 10 of
new Schedule 4 provides that the amendments made by new Schedule 4A to the Bill apply in
relation to dismissals that take effect after the commencement of that Schedule (for the
amendments made by Part 1 of new Schedule 4A) and employment that is terminated after the
commencement of that Schedule (for the amendments made by Part 2 of new Schedule 4A).
Fair Work Amendment Bill 2013 58 Senate
The FWC - Schedule 5
SCHEDULE 5 - THE FWC
Overview
306. This Schedule amends certain provisions of the FW Act in relation to the FWC.
Fair Work Act 2009
Item 1 - After paragraph 576(1)(n)
Item 2 - At the end of subsection 576(1)
307. Subsection 576(1) lists the broad areas in which the FWC has functions by reference to
other Parts of the FW Act. Items 1 and 2 insert a reference to the functions conferred on the
FWC in relation to transfer of business from a State public sector employer (set out
in Part 6-3A) and special provisions about TCF outworkers (Part 6-4A).
Item 3 - Before paragraph 576(2)(a)
308. This item expressly confers on the FWC the function of promoting more co-operative
and productive workplace relations and the prevention of disputes. It is intended to provide
greater clarity about the FWCs functions in this regard.
Item 4 - Paragraph 632(b)
309. This item removes from paragraph 632(b) of the FW Act all the words after ,,under a
Commonwealth or Territory law. This provides increased flexibility to concurrently appoint
Deputy Presidents or Commissioners to offices under Commonwealth or Territory laws in which
their expertise may be useful. From time to time Members of the FWC (and its predecessors)
have undertaken roles outside the FWC which draw on their experience and expertise. This
amendment removes a potential impediment to FWC Members being considered for appointment
to a wider range of such roles.
Application of amendments
310. Item 1 of Schedule 7 to the Bill inserts new Schedule 4 into the FW Act. Item 11 of
new Schedule 4 provides for the amendment in item 4 to paragraph 632(b) of the FW Act, to
apply in relation to an appointment made after the commencement of Schedule 5.
Fair Work Amendment Bill 2013 59 Senate
Technical Amendments - Schedule 6
SCHEDULE 6 - TECHNICAL AMENDMENTS
Overview
311. This Schedule includes amendments correcting a number of technical issues in the
FW Act and the Fair Work Amendment Act 2012 (FW Amendment Act 2012).
Fair Work Act 2009
Item 1 - Section 12 (definition of default fund employee)
312. This amendment is a technical amendment relating to the definition of ,,default fund
employee in s 12 of the FW Act, and consequential upon the repeal of section 149A by item 12
of Schedule 1 to the FW Amendment Act 2012.
313. The definition of ,,default fund employee was inserted by item 1 of Schedule 4 to the
Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act
2012.
314. The definition is a signpost definition, referring to subsection 149A(2), which is to be
repealed on 1 January 2014.
315. Item 1 omits the reference to subsection 149A(2) in the definition of ,,default fund
employee and substitutes a reference to new subsection 149C(2), which is to be inserted by
item 13 of Schedule 1 to the FW Amendment Act 2012.
316. A ,,default fund employee is an employee who has no chosen fund, within the meaning
of the Superannuation Guarantee (Administration) Act 1992.
Item 2 - Subsection 176(4)
317. There is incorrect punctuation in subsection 176(4) of the FW Act. Item 2 corrects that
punctuation.
Item 3 - Subsection 400(1)
318. Item 3 corrects a reference from Fair Work Australia (FWA) to the Fair Work
Commission (FWC).
Item 4 - Subsection 515(5)
319. There is a grammatical error in subsection 515(5) of the FW Act. Item 4 corrects that
error.
Item 5 - Paragraph 584(1)(a)
320. Item 5 corrects a reference from the Minimum Wage Panel to the Expert Panel.
Item 6 - Subsection 603(1)
321. There is a grammatical error in subsection 603(1) of the FW Act. Item 6 corrects that
error.
Item 7 - Subsection 603(1) (note)
322. There is a grammatical error in the note to subsection 603(1) of the FW Act. Item 7
corrects that error.
Fair Work Amendment Bill 2013 60 Senate
Technical Amendments - Schedule 6
Item 8 - Paragraph 670(2)(a)
323. Item 8 corrects a reference from FWA to the FWC.
Fair Work Amendment Act 2012
Item 9 - Item 40 of Schedule 8 (heading)
324. Item 9 amends the heading to item 40 of Schedule 8 to the FW Amendment Act 2012,
so that it correctly refers to subsection 644(1) of the FW Act rather than section 644.
Item 10 - Item 41 of Schedule 8
325. Item 10 amends item 41 of Schedule 8 to the FW Amendment Act 2012 to remove an
unnecessary comma.
Item 11 - Item 414 of Schedule 9 (heading)
326. Item 11 amends the heading to item 414 of Schedule 9 to the FW Amendment Act 2012
to remove an incorrect reference to subsection 401(1).
Item 12 - Item 1144 of Schedule 9
327. Item 12 corrects an incorrect reference in item 1144 of Schedule 9 to the
FW Amendment Act 2012.
Item 13 - Item 1252 of Schedule 9
328. Item 13 replaces existing item 1252 of Schedule 9 to the FW Amendment Act 2012
with a new item 1252, so that it correctly replaces all references to FWA in subitem 2(1) of
Schedule 20 to the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009 with references to the FWC.
Item 14 - Item 1364 of Schedule 9
329. Item 14 repeals item 1364 of Schedule 9 to the FW Amendment Act 2012. Item 1364
of Schedule 9 sought to replace a reference in the heading to section 768BD of the FW Act
(which was inserted into that Act by the Fair Work Amendment (Transfer of Business) Act 2012).
However, item 1364 of Schedule 9 became redundant because of amendments that were made to
the Fair Work Amendment (Transfer of Business) Act 2012.
Fair Work Amendment Bill 2013 61 Senate
Registered organisations - Schedule 6A
SCHEDULE 6A - REGISTERED ORGANISATIONS
Fair Work (Registered Organisations) Amendment Act 2012
Item 1 - Section 2 (table item 3)
330. Item 1 repeals table item 3 of the commencement information table of the ROA Act
and substitutes it with new items 3 and 4.
331. New table item 3 provides that new Part 1A (as inserted by item 2) will commence on
1 July 2013.
332. New table item 4 provides that the commencement of Schedule 1, Part 2 will be
1 January 2014.
333. Under the ROA Act amendments, registered organisations must comply with the
requirements of Schedule 1, Part 2 of the ROA Act by 29 June 2013. In order to do so, registered
organisations must certify any required rule alterations with FWC before that date. In order to
avoid registered organisations being non-compliant with the RO Act (as amended by the
ROA Act) because their applications have not been finalised by 29 June 2013, the
commencement of Part 2 has been extended to 1 January 2014 to allow time for the approval of
these applications.
334. Amendments to item 58 of Schedule 1, Part 2 (see item 9 below) ensure that there is no
reduction in the disclosure obligations on registered organisations as a result of the amendment
to the commencement of Part 2 by item 1.
Item 2 - After Part 1 of Schedule 1
335. Item 2 amends the ROA Act to insert new Part 1A into Schedule 1.
336. The insertion of Part 1A by item 2 will allow the Minister to issue final model rules
under new sections 142A and 148F prior to the commencement of the obligations in Schedule 1,
Part 2.
337. The model rules are intended to provide organisations with guidance when making any
necessary rule alterations. The substance of the Ministers powers under existing new
sections 142A and 148F are unaffected by the amendments in item 2.
Item 3 - Part 2 of Schedule 1 (heading)
338. Item 3 is a consequential amendment to the heading to Schedule 1, Part 2 upon the
amendments in item 1.
Item 4 - Item 56 of Schedule 1
Item 5 - Item 57 of Schedule 1 (heading)
Item 6 - Item 57 of Schedule 1 (heading to new Division 3A)
339. Items 4, 5 and 6 are consequential amendments upon the insertion of new Part 1A by
item 2.
Item 7 - Item 57 of Schedule 1 (after new subsection 148C(2))
340. Item 7 amends item 57 of Schedule 1 to clarify the Governments policy intention
regarding the disclosure of remuneration of officials to ensure that only the identity and relevant
information regarding the remuneration of the 5 highest ranked officers (for organisations) and
2 highest ranked officers (for branches) is disclosed to members (under new section 148A).
Fair Work Amendment Bill 2013 62 Senate
Registered organisations - Schedule 6A
341. New subsection 148C(2A) will ensure that remuneration paid to officers will not have
to be disclosed as a payment to a related party under that section. The subsection also clarifies
that reimbursements for costs reasonably incurred by the officer in the course of performing his
or her duties are not intended to be captured by the requirements to disclose payments to related
parties. The amendment is intended to exclude the disclosure of small expenses such as cost of
taxi fares, stationery or other incidentals.
342. A note to new subsection 148C(2A) makes clear that nothing in the amendment to
section 148C diminishes the obligation to disclose remuneration under new section 148A.
Item 8 - Item 57 of Schedule 1 (new section 148F)
343. Item 8 is a consequential amendment upon the insertion of new Part 1A by item 2.
Item 9 - Item 58 of Schedule 1
344. Item 9 repeals item 58 of Schedule 1, which sets out transitional provisions, and
substitutes it with a new item 58. New item 58 is a transitional provision for the 2013-14
financial year that will ensure that there is no reduction in the disclosure obligations on
registered organisations and their officers because of the amendment to the commencement of
Schedule 1, Part 2 of the ROA Act by item 1 of this Schedule.
345. On 1 January 2014 registered organisations will be required to have rules that meet the
requirements of the RO Act as amended by Part 2 of the ROA Act. New item 58 will ensure that
all disclosures that would have been required to be made by officers and registered organisations
under rules made in accordance with sections 148A- 148C of the RO Act (as amended by the
ROA Act) will still be required.
346. New subitems 58(2) and (3) will deem the rules of organisations to require that officers
of organisations or branches (as the case may be) must disclose to the organisation for the period
1 July - 31 December 2013:
remuneration paid to the officer because the officer is a member of a board or by a related
party of the organisation (s 148A(1) and (2)); and
material personal interests of the officer (s 148B(1) and (2)).
347. The provision will require officers to disclose this information to the organisation as
soon as practicable after the commencement of the provisions on 1 January 2014 but no later
than 31 January 2014.
348. New subitem 58(4) will provide that registered organisations must disclose any
information disclosed by officers under subitems 58(2) and (3), or under the rules of the
organisation or branch that commence on 1 January 2014, by 31 December 2014. Registered
organisations will also need to disclose all payments made to related parties for the 2013-2014
financial year by the same date. This is consistent with existing provisions, which require that all
disclosures for the disclosure period (which as a result new subitem 58(4) is the period
1 July 2013 - 30 June 2014) are made within six months of the end of the disclosure period.
349. Item 58 does not affect the operation of rules that have been made under section 148C
in accordance with an exemption granted by the General Manager of FWC under section 148D
(or under the transitional provision in item 39 of the ROA Act). In relation to such rules, new
subitem 58(4) only establishes the disclosure period for which payments to related parties have
to be disclosed to the members of the organisation.
Fair Work Amendment Bill 2013 63 Senate
Registered organisations - Schedule 6A
350. Item 58 will not affect the capacity of organisations to apply to the General Manager of
FWC for an exemption under section 148D or through the transitional provision in item 39 of the
ROA Act.
351. Subitems 58(6) and (7) make clear that relevant disclosures must still be made in the
manner provided for in the relevant rules and that subitems 58(2)-(5) do not otherwise affect the
rules of an organisation.
Fair Work Amendment Bill 2013 64 Senate
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