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2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Tackling Job Insecurity) Bill 2012
EXPLANATORY MEMORANDUM
Circulated by the authority of Adam Bandt
Fair Work Amendment (Tackling Job Insecurity) Bill 2012
OUTLINE
The Fair Work Amendment (Tackling Job Insecurity) Bill 2012 amends the Fair
Work Act 2009 to provide a process for 'insecure' workers to move to
ongoing employment on a part-time or full-time basis.
An employee who is a casual or rolling contract employee can ask their
employer to move to secure employment (ie. ongoing part-time or full-time
employment with paid leave entitlements).
An eligible employee (or their union) must make the request for a secure
employment arrangement with their employer in writing. The employer must
give the employee or their union a written response to the request within
21 days. If the employer refuses the request, the written response must
include the reasons for the refusal.
If an employer refuses a request for ongoing employment then an application
can be made to Fair Work Australia who can issue a 'secure employment
order'.
Fair Work Australia may also make orders to maintain existing secure
employment arrangements.
The right of small businesses to use genuine casual employees will be
preserved, with such employees excluded from the operation of the Bill.
Unions may apply directly to Fair Work Australia for secure employment
orders on behalf of:
. Eligible persons who haven't had a request refused; and
. Classes of eligible persons (such as a particular industry, kind of
work, type of employment or employer).
Two general classes of workers are eligible to request secure employment
arrangements from their employers.
1. Casual employees
Casuals are eligible to make a request regardless of length of service;
however genuine casuals employed by small business are exempt. This
exemption for small business is consistent with the existing objects of the
Fair Work Act.
2. Rolling contract employee
The Bill defines an employee as a rolling contract employee if they have
been employed on a fixed term contract by the same employer doing the same
type of work on two or more occasions.
Separately, unions and employer organisations may apply to Fair Work
Australia for a 'secure employment order' to apply to a class of employees,
a class of employers or an industry. Small business casuals will be exempt
from any such orders of general application.
In deciding whether to make a secure employment order, Fair Work Australia
must have regard to a number of factors including the needs of employees to
have secure jobs and stable employment, and an employer's capacity to use
arrangements that are not secure employment arrangements in cases where
this is genuinely appropriate having regards to the needs of the business.
A secure employment order may apply to one or more persons or class of
persons and may be implemented in stages as Fair Work Australia thinks
appropriate.
NOTES ON CLAUSES
Clause 1 - Short Title
This is a formal provision specifying the short title.
Clause 2 - Commencement
The Bill's provisions are to commence the day after the Bill receives Royal
Assent
Clause 3 - Schedules
This clause 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.
Schedule 1-Amendments to the Fair Work Act 2009
Item 1 amends paragraph 5(8)(a) to include reference to a secure employment
order in Other terms and conditions.
Item 2 inserts rolling contract basis into the Dictionary of the Fair Work
Act and includes a reference to the new section 21A which provides a
definition.
Item 3 inserts rolling contract employee into the Dictionary of the Fair
Work Act and includes a reference to the new section 21A which provides a
definition.
Item 4 inserts secure employment arrangement into the Dictionary of the
Fair Work Act and defines it as ongoing employment on a part time or full
time basis.
Item 5 inserts secure employment order into the Dictionary of the Fair Work
Act.
Item 6 inserts the definition of a small business exempt casual into the
Dictionary of the Fair Work Act. A casual employee is a small business
exempt casual if the employer is a small business employer as defined in
the existing section 23 and the employee is not a long term casual
employee.
Item 7 inserts a new section 21A that defines the meaning of rolling
contract employee and rolling contract basis.
An employee is employed on a rolling contract basis if the contract of
employment ends at a specified time and the employee has previously been
employed by the employer under such a contract, and the current and
previous contracts relate to the same kind of work.
An employee who is employed on a rolling contract basis is defined as a
rolling contract employee.
Item 8 amends subparagraph 43(2)(a)(ii) by omitting "and" and substituting
"or". This provides for a new subparagraph 43(2)(a)(iii) to be inserted.
Item 9 inserts a new subparagraph 43(2)(a)(iii) which adds a secure
employment order as one of the instruments that can specify terms and
conditions of employment.
Item 10 inserts a new 172(1)(ca) to allow for matters pertaining to secure
employment arrangements, including moving from casual employment, or from
employment on a rolling contract basis, to secure employment arrangements
to be permitted matters for the making of enterprise agreements.
Item 11 inserts a new Part 2-7B dealing with secure employment
arrangements.
Division 1 contains the introduction which consists of sections 306J and
306K.
The new section 306J provides a guide to the new Part 2-7B.
The new section 306K defines employee as a national system employee, and
employer as a national system employer for the purposes of Part 2-7B.
Division 2 deals with requests for secure employment arrangements.
The new section 306L sets out the process for requests to change from
casual employment to secure employment arrangements. A casual employee may
make a request in writing for a secure employment arrangement with their
employer. A written request may also be made by an employee organisation
that is entitled to represent casual employees if asked to do so by one or
more of those employees.
The employer must give the employee or organisation a written response to
the request within 21 days, stating whether the employer grants or refuses
the request. If a request is refused the employer's written response must
include details of the reasons for the refusal. This section does not apply
in relation to a small business exempt casual.
The new section 306M sets out the process for requests to change from
employment on rolling contract basis to secure employment arrangements. A
rolling contract employee may make a request in writing for a secure
employment arrangement with their employer. A written request may also be
made by an employee organisation that is entitled to represent rolling
contract employees if asked to do so by one or more of those employees.
Division 3 deals with secure employment orders.
The new section 306N gives FWA the power to make a secure employment order.
If FWA receives an application in accordance with section 306P it may make
a secure employment order it considers appropriate to provide, or to
maintain, secure employment arrangements for the person or persons to whom
the order will apply.
The order may apply to any one of the following persons (a relevant
person):
(i) a casual employee;
(ii) a rolling contract employee;
(iii) a prospective employee who, if employed at the time the
application for the order was made, would be a casual employee or
rolling contract employee;
(iv) an employee who already has a secure employment arrangement;
(v) a prospective employee who, if employed at the time the
application for the order was made, would have a secure employment
arrangement;
The order may also apply to two or more relevant persons; or a class of
relevant persons.
The class may be described by reference to a particular industry, a
particular kind of work, a particular type of employment or a particular
employer.
A secure employment order must specify the employer or employers who are
required to comply with the order.
A secure employment order cannot apply to a small business exempt casual.
The new section 306P sets out who can make an application for a secure
employment order.
In relation to a request refused under section 306L or 306M the application
may be made by the employee if they made the request or an organisation
that is entitled to represent the interests of the employee, if requested
by the employee to do so. The Age Discrimination Commissioner, the
Disability Discrimination Commissioner or the Sex Discrimination
Commissioner may also make an application.
Where an organisation has made the request the organisation may then make
an application to FWA for a secure employment order.
An application for a secure employment order that is not in relation to a
request refused under section 306L or 306M may be made by an organisation
that is entitled to represent the interests of the relevant persons to whom
the order will apply, or an employer organisation that is entitled to
represent the industrial interests of an employer of a relevant person,
relevant persons or class of relevant persons to whom the order will apply.
The new section 306Q sets out the matters that FWA must consider when
deciding on whether to make a secure employment order and the terms of the
order.
FWA must have regard to the needs of employees to have secure jobs and
stable employment, an employer's capacity to use arrangements that are not
secure employment arrangements where this is genuinely appropriate for the
business, and the size of the employer or employers to whom the order will
apply.
If the application was made under subsection 306P(2) then FWA must have
regard to whether the order should apply to the same employees and
prospective employees, and require the same employers to comply with it, as
are covered by a relevant modern award.
FWA may also consider any other matter it considers relevant.
The new section 306R sets out the content of secure employment orders
affecting more than one person. Orders providing or maintaining secure
employment arrangements for more than one relevant person may include one
or more of the following:
. an order requiring that all the relevant persons who are long term
casual employees be offered a secure employment arrangement;
. an order providing for a process by which all the relevant persons who
have been employed by the employer for a certain period of time can
elect to have a secure employment arrangement;
. an order specifying the terms of secure employment arrangements under
which casual loadings would be phased out over a period of time so as
to avoid a sharp drop in employee remuneration;
. an order implementing secure employment arrangements in such stages
(as provided in the order) as FWA thinks appropriate;
. an order requiring the employer to provide information to FWA for the
purposes of monitoring the staged implementation of secure employment
arrangements;
. an order regulating the engagement of prospective employees on a
casual basis, a rolling contract basis or a secure employment basis;
. an order regulating the employer's use of arrangements that are not
secure work arrangements in circumstances in which secure work
arrangements could be used.
However, FWA is not limited in the orders it can make under section 306R.
The new section 306S provides that a secure employment order may be
implemented in stages (as provided in the order) as FWA thinks appropriate.
The new section 306T establishes that an employer must not contravene a
secure employment order. This is civil remedy provision as provided for in
Part 4-1.
The new section 306U deals with any inconsistency between a secure
employment order and modern awards or enterprise agreements. A term of a
modern award or an enterprise agreement has no effect in relation to an
employee to the extent that it is less beneficial to the employee than a
term of a secure employment order that applies to the employee.
Item 12 inserts a new item 9B into the table in subsection 539(2) which
sets out the standing, jurisdiction and maximum penalties for breaching a
secure employment order.
Standing is given to a person to whom a secure employment order applies or
an organisation entitled to represent a person to whom a secure employment
order applies. The Federal Court, the Federal Magistrates Court or an
eligible State or Territory court have jurisdiction and the maximum penalty
for contravention of a secure employment order is 60 penalty units.
The existing section 557 provides that 2 or more contraventions of a civil
remedy provision referred to in section 557(2) are taken to constitute a
single contravention if they are committed by the same person and the
contraventions arose out of a course of conduct by the person.
Item 13 inserts a new paragraph 557(2)(fa) to provide that section 306T
which deals with contraventions of working arrangements orders is one of
the civil remedy provisions listed in 557(2).
Item 14 inserts a new section 576(1)(fa) which gives FWA functions in
relation to secure employment arrangements as set out in Part 2-7B.
Item 15 inserts a new section 653(1)(ca) which requires the General Manager
of FWA to conduct research into the operation of Part 2-7B in relation to
requests for secure employment arrangements.
Item 16 repeals section 653(1)(d)(i) and inserts a new provision requiring
the General Manager of FWA to conduct research into the circumstances in
which requests for flexible working arrangements, requests for extensions
of unpaid parental and requests for secure employment arrangements are
made.
Item 17 inserts a new section 675(2)(ea) which provides that a
contravention of a secure employment order is not a criminal offence.
Item 18 inserts a new subsection 716(1) (g) which gives Fair Work
Inspectors powers to issue a notice if they reasonably believe that person
has contravened a secure employment order. The notice may require a
specific action to remedy the direct effects of the contravention and
require them to produce reasonable evidence of their compliance with the
notice.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
The Fair Work Amendment (Tackling Job Insecurity) Bill 2012
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 Bill
The Fair Work Amendment (Tackling Job Insecurity) Bill 2012 amends the Fair
Work Act 2009 to provide a process for 'insecure' workers to move to
ongoing employment on a part-time or full-time basis.
An employee who is a casual or rolling contract employee can ask their
employer to move to secure employment (ie. ongoing part-time or full-time
employment with paid leave entitlements).
If an employer refuses a request for ongoing employment then an application
can be made to Fair Work Australia who can issue a 'secure employment
order'.
In deciding whether to make a secure employment order, Fair Work Australia
must have regard to a number of factors including the needs of employees to
have secure jobs and stable employment, and an employer's capacity to use
arrangements that are not secure employment arrangements in cases where
this is genuinely appropriate having regards to the needs of the business.
Human rights implications
This Bill positively engages the following applicable rights or freedoms:
Article 7(d) of the International Covenant on Economic, Social and Cultural
Rights which states that:
"The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and favourable conditions of work,
which ensure, in particular:
(d) Rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public
holidays.
The Bill promotes the right of workers to have greater access to ongoing
employment with paid leave entitlements.
Article 11(c) & (e) of the Convention on the Elimination of All Forms of
Discrimination Against Women which states that:
States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to
ensure, on a basis of equality of men and women, the same rights, in
particular:
(c) The right to free choice of profession and employment, the right
to promotion, job security and all benefits and conditions of service
and the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(e) The right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to
work, as well as the right to paid leave;
Women are more likely to be in insecure employment than men - 27% of all
female employees do not have paid leave entitlements compared to 20.5% of
male employees[1] - the Bill will help to address this by giving women
greater access to secure jobs with paid leave entitlements.
Adam Bandt MP
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[1] ABS, Forms of Employment, November 2011.