Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

FAIR WORK AMENDMENT REGULATION 2013 (NO. 2) (SLI NO 139 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 139

Issued by the authority of the Minister for Employment and Workplace Relations

Subject -          Fair Work Act 2009

                        Fair Work Amendment Regulation 2013 (No. 2)

Section 796 of the Fair Work Act 2009 (FW Act) provides that the Governor-General may make regulations required or permitted to be prescribed under the FW Act, or necessary or convenient to be prescribed for carrying out or giving effect to the FW Act.

The Fair Work Amendment Act 2013 made a number of amendments to the FW Act, including, among other things, by:

*         providing for an expanded range of circumstances in which an employee may request a change to their working arrangements (subsection 65(1A) of the FW Act);

*         providing that an employee who is a parent or has the responsibility for the care of a child, and is returning to work from parental leave, is entitled to request that he or she work on a part-time basis (subsection 65(1B) of the FW Act); and

*         expanding the current requirement that an enterprise agreement must include a term requiring an employer to consult about a major workplace change that is likely to have a significant effect on employees, to provide that an enterprise agreement must also include a term requiring an employer to consult about a change to their regular roster or ordinary hours of work (paragraph 205(1)(a) of the FW Act).

The Regulation makes minor amendments to the Fair Work Regulations 2009 (Principal Regulations), consequential upon amendments to the FW Act made by the Fair Work Amendment Act 2013.

Fair Work Information Statement

Section 125 of the FW Act provides that an employer is required to provide each employee with a Fair Work Information Statement (the Statement) before, or as soon as practicable after, the employee starts employment. The Statement is intended to apprise employees of their rights under, and the operation of, particular provisions of the FW Act.

Section 124 of the FW Act requires the Fair Work Ombudsman to prepare the Statement and publish it in the Commonwealth Government Notices Gazette. Section 124(2) of the FW Act provides that the Statement must contain information about the National Employment Standards, modern awards, agreement-making under the FW Act, the right to freedom of association, the role of the Fair Work Commission and the Fair Work Ombudsman, termination of employment, individual flexibility agreements and right of entry (including the protection of personal information by privacy laws).

The Regulation makes a minor amendment to the Principal Regulations to prescribe additional information about the entitlement to request flexible working arrangements under the National Employment Standards for inclusion in the Statement. The Regulation requires that details of the range of circumstances in which an employee may request a change in working arrangements, as described in subsections 65(1A) and (1B) of the FW Act, are included in the Statement.

Model consultation term

The Fair Work Amendment Act 2013 amended subsection 205(1) of the FW Act to provide that an enterprise agreement must include a term that requires an employer to consult with employees about:

*         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 (paragraph 205(1)(a) of the FW Act).

The Regulation repeals the model consultation term set out at Schedule 2.3 of the Principal Regulations and substitutes new Schedule 2.3, to provide for a model consultation term that meets the requirements of subsections 205(1) and (1A) of the FW Act as amended. 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 in Schedule 2.3 to the Regulation would be taken to be a term of the agreement. 

The Government consulted with the States and Territories as required by the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector.

Details of the Regulation are in the Attachment.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required.

Sections 1 to 4 of the Regulation and Schedule 1 to the Regulation commence operation on 1 July 2013. Schedule 2 to the Regulation commences operation on 1 January 2014.

ATTACHMENT

Details of the Fair Work Amendment Regulation 2013 (No. 2)

Section 1 - Name of regulation

This section sets out the name of the Regulation as the Fair Work Amendment Regulation 2013 (No. 2).

Section 2 - Commencement

The table in this section provides for the commencement of the Regulation. The amendments set out in Schedule 2 to the Regulation commence operation on 1 January 2014. The remaining sections and Schedules to the Regulation commence operation on 1 July 2013.

Section 3 - Authority

This section provides that the Regulation is made under the Fair Work Act 2009 (FW Act).

Section 4 - Schedule(s)

This section provides the Schedules to this Regulation set out amendments to, and where applicable, repeal sections of the Fair Work Regulations 2009 (Principal Regulations).

Schedule 1 - Amendments commencing on 1 July 2013

Fair Work Regulations 2009

Item [1] - Regulation 2.01

Item 1 of Schedule 1 to the Regulation inserts subclause "(1)" before the words "for subsection" in Regulation 2.01 of the Principal Regulations.

Item [2] - Regulation 2.01 (at the end)

Item 2 of Schedule 1 to the Regulation inserts new subclause 2.01(2) of the Principal Regulations. New subclause 2.01(2) provides that, for subsection 124(4) of the FW Act, a Fair Work Information Statement must set out the circumstances set out in subsections 65(1A) and (1B) of the FW Act in which an employee may request a change in working arrangements.

Schedule 2 - Amendments commencing on 1 January 2014

Fair Work Regulations 2009

Item [1] - Model consultation term in Schedule 2.3

Section 205 of the FW Act requires an enterprise agreement to contain a consultation term requiring an employer to consult employees about major workplace changes that are likely to have a significant effect on the employees, or to consult employees if there is a change to the regular roster or ordinary working hours of employees. The term must also provide for the representation of the employees for the purposes of that consultation.

Regulation 2.09 of the Principal Regulations prescribes the model consultation term for enterprise agreements set out in Schedule 2.3. Item 1 of Schedule 2 to the Regulation repeals the model consultation term in Schedule 2.3 and substitutes a new model consultation term.

Subclause 1 of new Schedule 2.3 provides for the circumstances in which the model consultation would apply. If the employer:

*         has made a definite decision to introduce a major change to the production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

*         proposes to introduce a change to the regular roster or ordinary hours of work of employees;

then the operation of the model consultation term is triggered, and the employer would be obliged to consult with employees in accordance with the term.

The model consultation term allows an employee or group of employees to be represented in the consultation process. It provides that employers must consult with a representative of the employees if an employee advises the employer that a person has been appointed to represent them (see subclauses 3 and 4, and 11 and 12).

Subclause 16 defines the term 'relevant employees' as those employees who may be affected by a change referred to in subclause (1) as that term is used in new Schedule 2.3.

Major workplace change

Subclauses 3 to 9 of new Schedule 2.3 are the same as are currently set out in Schedule 2.3 of the Principal Regulations, and deal with consultation on major workplace change. The subclauses of the model consultation term relating to consultation on major workplace change are based on consultation terms developed by the AIRC for inclusion in modern awards.

Subclauses of the model consultation term relating to consultation on major workplace change require an employer to notify relevant employees of a decision to introduce a major change to production, program, organisation, structure, or technology in relation to an enterprise if it is likely to have a significant effect on employees by resulting in:

*         the termination of the employment of employees;

*         major change to the composition, operation or size of the employer's workforce or to the skills required of employers;

*         the elimination or diminution of job opportunities (including opportunities for promotion or tenure);

*         the alteration of hours of work;

*         the need to retrain employees;

*         the need to relocate employees to another workplace; or

*         the restructuring of jobs.

Subclauses of the model consultation term relating to consultation on major workplace change require the employer, as soon as is practicable after making a decision to introduce a major change:

*         discuss the introduction of the change with relevant employees, as well as the likely effect of the change on them and the measures the employer is taking to avert or mitigate the adverse effect of the change on the employees;

*         for the purposes of the discussion, provide the relevant employees with relevant information in writing, including information about the nature of the proposed change and its expected effects on those employees, and any other matters likely to affect the employees. However, the employer is not required to disclose confidential or commercially sensitive information to the employees.

The employer is then required to give prompt and genuine consideration to matters raised in consultation about the major change by the relevant employees.

Change to regular roster or ordinary hours of work

Subclauses 10 to 15 of new Schedule 2.3 sets out obligations to engage in consultation in relation to change to the regular roster or ordinary hours of work of employees. For the purposes of change to the regular roster or ordinary hours of work of employees, the employer is required to notify the relevant employees of the proposed change, and engage in the process for consultation set out in subclauses 11 to 15 of Schedule 2.3.

Subclauses of the model consultation term relating to consultation on change to the regular roster or ordinary hours of work of employees require the employer to:

*         discuss with the relevant employees the introduction of the change; and

*         provide the relevant employees with relevant information, including information about the nature of the change and information about what the employer reasonably believes will be the effects of the change on the employees, and any other matters that the employer reasonably believes are likely to affect the employees. However, the employer is not required to disclose confidential or commercially sensitive information to the employees; and

*         invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

The employer must give prompt and genuine consideration to matters raised about the change to regular rosters or ordinary hours of work by the relevant employees.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Fair Work Amendment Regulation 2013 (No. 2)

This Legislative Instrument 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 Legislative Instrument

The purpose of this legislative instrument is to amend the Fair Work Regulations 2009

(the Principal Regulations) consequential on amendments to the Fair Work Act 2009 (FW Act) made by the Fair Work Amendment Act 2013.

Fair Work Information Statement

This legislative instrument makes a minor amendment to the Principal Regulations to prescribe additional information about the entitlement to request flexible working arrangements under the National Employment Standards for inclusion in the Statement. This legislative instrument requires the range of circumstances in which an employee may request a change in working arrangements, as described in subsections 65(1A) and (1B) of the FW Act, to be included in the Statement.

Model consultation term

This legislative instrument repeals the model consultation term set out at Schedule 2.3 of the Principal Regulations and substitutes new Schedule 2.3, to provide for a model consultation term that meets the requirements of subsection 205(1) and 205(1A) of the FW Act as amended by the Fair Work Amendment Act 2013. 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 in Schedule 2.3 to this legislative instrument would be taken to be a term of the agreement. 

Human rights implications

This legislative instrument engages with the following human rights:

*         the right to work and rights in work including the right to just and favourable conditions of work in articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

*          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 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The Right to Work and Rights in Work

Article 6(1) of the ICESCR recognises the right to work and obliges States Parties to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in article 6(1) of ICESCR encompasses the need to provide the worker with just and favourable conditions of work. Article 7 of the ICESCR provides for a right to just and favourable conditions of work.

This legislative instrument promotes the right to just and favourable working conditions by ensuring that employees are fully apprised of the workplace rights provided for under the National Employment Standards before, or as soon as practicably after, commencing employment.

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. Article 5 of the CRC provides that State Parties shall respect the responsibilities, rights and duties of parents. 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.

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 child is the primary consideration in all cases.

By amending the model consultation term to require consultation in circumstances in which an employer makes a change to the regular roster or ordinary hours of work of employees, this legislative instrument promotes the rights and duties of parents and their caring responsibilities. The amendments ensure that a person's 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 parents and legal guardians in the performance of their child-rearing responsibilities.

Conclusion

The Legislative Instrument is compatible with human rights because it advances the protection of human rights.

The Hon William Richard Shorten MP

Minister for Employment and Workplace Relations

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback