CHAPTER 1


CHAPTER 1

Reference

1.1        On 21 March 2013, the Senate referred the provisions of the Fair Work Amendment Bill 2013 (the bill) to the Senate Education, Employment and Workplace Relations Legislation Committee (the committee) for inquiry and report by 14 May 2013.[1]

Conduct of inquiry

1.2        The committee advertised in The Australian on 27 March 2013, calling for submissions by 15 April 2013. Details of the inquiry were also made available on the committee's website.

1.3        The committee also contacted a number of organisations inviting submissions to the inquiry. Submissions were received from 54 individuals and organisations, as detailed in Appendix 1.

1.4        A public hearing was held in Melbourne on 22 April 2013. The witness list for the hearing is at Appendix 2.

Background

1.5        After the commencement of the Fair Work Act 2009, the Government requested that a Fair Work Act Review Panel (the Panel), consisting of three independent experts, be established within two years.  The Panel 'invited employee organisations, employer organisations and other interested parties to provide submissions in response to a background paper.'[2] In June 2012, the Panel released its final report: 'Towards more productive and equitable workplaces: an evaluation of the Fair Work legislation'.[3]

1.6        The Panel's report included 53 recommendations to improve the operation of the legislation.[4] The bill seeks to implement the second tranche of amendments suggested by these recommendations, with the first tranche having been implemented in the Fair Work Amendment Act 2012, passed by Parliament in December 2012.[5]

Overview of the bill

1.7        The bill was introduced in the House of Representatives by the Hon Bill Shorten MP, on 21 March 2013. The bill proposes to amend the Fair Work Act 2009 in order to implement a number of recommendations made by the Fair Act Review Panel that have not already been implemented in the Fair Work Amendment Act 2012, as well as various reforms that reflect the Government's workplace relations policies.[6]

1.8        Broadly, the bill proposes to:

  • introduce the right for pregnant women to transfer to a safe job, while providing flexibility in relation to unpaid parental leave so that special maternity leave taken will not affect the entitlement to unpaid parental leave;
  • require employers to consult with employees about changes to work hours;
  • amend modern awards to reflect the need to provide additional remuneration for employees working overtime, weekends or public holidays;
  • provide the Fair Work Commission (FWC) with the ability to deal with disputes between employers and Unions regarding the frequency of visits to premises for discussion purposes;
  • require interviews and discussions to be conducted in rooms agreed to by the occupier and permit holder;
  • provide accommodation and transport arrangements for permit holders in remote areas and to include limits on the amount that an occupier can charge a permit holder;
  • enable the FWC to deal with disputes concerning accommodation and transport arrangements; and
  • give the FWC the function of promoting cooperative and productive workplace relations while preventing disputes.[7]

1.9         The bill also proposes to implement the Government response to the House of Representatives Standing Committee on Education and Employment's report into workplace bullying. These amendments propose to:

  • Permit a worker who is subject to workplace bullying to apply to the FWC for an order to stop the bullying;
  • Incorporate a definition of 'bullied at work', into the bill that is consistent with the term 'workplace bullying';
  • Require the FWC to initiate work on an application for an order to stop bullying within 14 days of the application being made; and
  • Confer on the FWC the ability to make any order it deems suitable to stop the bullying.[8]

1.10      In addition, the bill incorporates a number of minor technical amendments.[9]

Key provisions of the bill

Family-friendly measures

1.11      The bill seeks to enable a female employee of an organisation to take leave instead of taking unpaid special maternity leave if that employee is entitled to paid personal leave.[10]

1.12      Additionally, the bill proposes to provide further flexibility in relation to concurrent unpaid parental leave, limiting the concurrent leave to eight weeks. Concurrent leave may be taken intermittently, but each period of leave must be more than two weeks.[11]

1.13      The bill proposes to expand the circumstances where an employee may request a change in their working arrangements. The amendment extends the right to request to an employee who: is a parent or has responsibility to care for a child who is of school age or younger, is a carer, has a disability, is 55 years of age or older, or is experiencing violence in their home life (or provides care and support for a family member who is).[12]

1.14      The bill proposes new requirements for employers to genuinely consult employees about changes to regular rosters or hours of work, and to consider the impact of the new work schedule on employees before making the change. Particular regard is to be given to the impact on the employee's family and caring arrangements.

1.15      The bill proposes to allow a pregnant employee the opportunity to present her employer with evidence that she is fit for work, but that it is not recommended for her to continue in her current position during the risk period, due to illness or risks associated with pregnancy or hazards arising from her position. The employer must then transfer the employee to a safe job without changes to the employee's conditions of employment (including current rate of pay), if such a safe job is available.[13]

Anti-bullying measure

1.16      The bill would allow an employee who has been bullied in the workplace to apply to the Fair Work Commissioner for an order to stop the bullying. The bill outlines that bullying at work consists of an individual or group of individuals continually behaving unreasonably towards the worker and that these actions create a risk to health and safety. In such cases, the FWC must deal with the application within 14 days of the date the application was made. The FWC is able to make an order to stop bullying if it is satisfied that a worker has been bullied and that there is a danger that the worker will continue to be bullied. The order can consist of any order the FWC deems appropriate, other than requiring monetary payment, to prevent any further bullying from occurring.[14]

Right of entry

1.17      The bill would amend the Fair Work Act 2009 to include provisions that a permit holder must conduct discussions and interviews in locations agreed with the occupier of the premises. This room may include an area where one or more of the interviewees usually take meal breaks, or a room that is provided by the occupier for the purpose of taking breaks.[15]

1.18      The bill also proposed to give the FWC the ability to deal with a dispute regarding the frequency of discussions organised by permit holders. The FWC may only make an order if it is satisfied that the frequency of entry by the permit holder is excessively diverting the occupier's critical resources. [16]

Compatibility with human rights

1.19      The Explanatory Memorandum contains commentary on the bill's human rights implications, stating that it involves the following rights[17]:

  • The right to maternity leave;
  • The rights of parents and children;
  • The right to freedom of association;
  • The right to just and favourable conditions of work;[18]
  • The right to the enjoyment of the highest to the enjoyment of the highest attainable standard of physical and mental health;
  • The right to equality and non-discrimination in employment;
  • The right to a fair hearing; and
  • The right to privacy and reputation.

1.20      The Explanatory Memorandum maintains that 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.'[19]

Financial Impact Statement

1.21      The government has undertaken to announce financial implications of the bill as part of the 2013-2014 Budget.

Consideration by the human rights and scrutiny committees

1.22      The bill has not yet been considered by the Parliamentary Joint Committee on Human Rights. The Senate Standing Committee for the Scrutiny of Bills has considered the bill and did not have any comments in relation to the scrutiny principles outlined in Senate Standing Order 24.[20]

Acknowledgement

1.23      The committee thanks those individuals and organisations who contributed to the inquiry by preparing written submissions and giving evidence at the hearing.

Notes on references

1.24      References in this report to the Hansard for the public hearing are to the Proof Hansard. Please note that page numbers may vary between the proof and the official transcripts.

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