It is not often that changes to the Fair Work Act pass with very little comment from the mass media, but that is what happened recently. Perhaps the lack of interest from the mass media is a result of the original Bill before the Parliament being very much watered down. Nonetheless, the Act has been varied in relation to Greenfields Agreements, approval of extended parental leave, and taking protected industrial action. The Bill, which was originally before the Senate in mid-2014, was approved by the Senate on 13 October 2015 and by the House of Representatives on 11 November 2015. It will not commence until it receives the Royal Assent from the Governor-General. See full article detailing amendments
Greenfields Agreements apply to new enterprises that have not employed any employees. They are negotiated between the employer and unions. It has been claimed that in important projects some unions have held up the negotiating process knowing that the employer has deadlines to commence the work and that this gives an unfair advantage to the union(s). Under the new changes an employer is able to notify the union(s) of a “notified negotiation period” of six months. If negotiations are not concluded within that six month period, the employer may apply to the Fair Work Commission for the approval of the Agreement and the Commission may approve the Agreement if satisfied that it provides for pay and conditions that are consistent with the prevailing pay and conditions within that industry for equivalent work.
The National Employment Standards provisions of the Act allow an employee who has taken parental leave to request an extension of the leave by up to 12 months. An employer who decides to reject such an application must respond in writing within 21 days. If refusing the request, the employer must state the reasons why and those reasons may only relate to “reasonable business grounds”. The new changes to the Act mean an employer must not refuse such a request unless they have given the employee a reasonable opportunity to discuss the request.
PROTECTED INDUSTRIAL ACTION
Protected industrial action may be taken by employees or an employer in support of their position during the negotiations for a new Enterprise Agreement. A decision of the Full Bench of the Fair Work Commission had previously made it possible for employees to take industrial action prior to the commencement of bargaining. The change to the Act seeks to address that decision. Essentially it means that unions who are faced with an employer who refuses to negotiate for a new Agreement must now seek the approval of a majority of employees to commence bargaining before any subsequent protected industrial action can be undertaken.