CHAPTER 2
Key issues
2.1
The bill has received a mixed response from submitters and witnesses. Employee
and worker advocacy groups generally supported the bill, and many have made
recommendations to improve the current proposals.[1]
In contrast, employer groups strongly objected to the bill, submitting that
other more important reforms had been overlooked and that the amendments
proposed by the bill would impose red-tape on businesses and be costly to
implement.[2]
The key issues discussed in submissions and during the hearing in Melbourne
related to the family friendly provisions, protections for pregnant workers,
the anti-bullying measures and the changes to right of entry.
Family friendly provisions
2.2
The family friendly measures proposed by Schedule 1 of the bill are
targeted at providing increased flexibility in working arrangements for
workers. The changes include more flexible parental leave, increased rostering
protections, and expanded rights to request flexible working hours.
Expansion of the right to request
access to flexible working hours
2.3
The bill proposes to expand the circumstances where an employee may
request a change in their working arrangements. The amendment extends this
right 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; is experiencing domestic violence, or provides care and support
for a family member who is.[3]
The employer may refuse any request on the basis of reasonable business
grounds, and the right to request may only be exercised by employees with 12
months of service.
2.4
The committee heard that the majority of requests made by employees are
minor and a typical request would be to adjust commencement or finishing time
by 15 minutes.[4]
Both employer and employee groups acknowledged that every day in Australia
employers receive requests from workers for flexible hours and, in most
instances, requests are carefully considered and employers make accommodations
where possible. Employer groups submitted that for this reason, the amendments
proposed should not proceed because they are not needed and would only serve to
burden 'the vast majority of employers, who do the right thing, with over
regulation'.[5]
In contrast, the Australian Council of Trade Unions (ACTU) and others submitted
that the reforms proposed are required because of the very small number of
employers that are not engaged in best practice.[6]
2.5
Access to flexible work arrangements is very important to Australian
workers and the Australian economy. DEEWR cited research conducted in the
United Kingdom that increased rights to request flexible working hours could
improve productivity and that only 12 per cent of employers reported a negative
effect, and the remainder reporting no impact.[7]
During the Melbourne hearing Ms Therese Bryant, National Women's Officer, Shop,
Distributive and Allied Employees Association (SDA) submitted that:
Many Australians quite rightly have the attitude that
families come first. If families cannot get the flexibility at work which they
need to balance their work and family responsibilities, then they will reduce
their labour force participation with negative financial and wellbeing
consequences for that family and for Australian society at large. If we want to
increase the level of labour force participation other than by temporary
migrant visas, an important measure will be to increase the practical
availability of flexible working arrangements to employees while at the same
time providing some security around rosters, with the knowledge that at least
the impact on an employee's family will be considered in the event of the need
to change.[8]
2.6
The committee heard that in order to make these amendments meaningful,
employees need to have a right to request review of the process the employer
took to consider the application. Mr Tim Lyons, ACTU, contended that review
rights are necessary to make explicit that the employer is required to carefully
consider the request, weigh up the advantages and disadvantages, and make
reasonable efforts to accommodate the employee.[9]
The SDA described the right to request as a 'hollow right' without a review
right.[10]
The Australian Human Rights Commission, and a number of other submitters, also
supported a right to review.[11]
2.7
The Law Institute of Victoria cautioned that the expansion of the right
to request may create 'an incorrect impression in the mind of the employee that
employees are entitled to flexible work' and also called for review rights for
employees where a request is refused for reasons other than reasonable business
grounds.[12]
2.8
The Department of Education, Employment and Workplace Relations (DEEWR)
advised that the decision was made not to include an appeal mechanism because
the Review Panel found that 'employers are taking requests for flexible work
arrangements seriously and that in the majority of cases employees can
negotiate flexible arrangements despite the absence of an appeal mechanism'.[13]
2.9
Some witnesses and submitters recommended changes to the definitions of
the class of people who may request flexible working arrangements. A number of
submitters contended that the proposed description of the type of worker who
can request flexible working hours is too narrow, and some workers who need to
request flexible hours may be excluded, particularly those who have not served
the qualifying period.[14]
Some submitters called for the provision to be amended to grant all
workers the right to request flexible working hours.[15]
DEEWR explained that the terms in the proposed provision are not defined,
because the provision is about 'facilitating a conversation'.[16]
2.10
For the purposes of the bill, a person is a carer if they meet the
definition of 'carer' in the Carers Recognition Act 2010 (Cth). Carers
Victoria acknowledged that some workers would benefit from a more expansive
definition of carer. But in their submission stated that, on balance, the
definition used in the bill was the right one for two reasons:
- although a universal right to request flexible work for all
employees may be more beneficial to carers than a more bounded one, there is
recognition that a stepped approach to achieving change is more realistic,
given Australia’s current political and industrial relations dynamics; and
- the Amendment Bill’s reference to the Carer Recognition Act is an
appropriate use of the Act. The Carer Recognition Act needs to be routinely
applied to other legislation in order to develop currency and potency.[17]
2.11
Carers Victoria expressed concern that carers may be unduly impacted by
the 12 month qualifying period before they can request flexible work
arrangements. The bill as it stands only supports workers with new caring responsibilities
who have worked with the same employer for more than 12 months. Long term
carers however, 'require flexibility from their first day of work'.[18]
The ACTU agreed, and suggested that the definition of carer should be expanded
to include workers who are yet to take on caring responsibilities.[19]
2.12
An employer may refuse any request on the basis of reasonable business
grounds. The bill provides a non-exhaustive list of the types of circumstances
that may be captured by this term, including: excessive cost, lack of capacity,
impracticality, significant loss of efficiency or productivity, and negative
impact on customer service.[20]
2.13
Some submitters argued that the reasonable business grounds exemption is
too broad. For example, the ACTU observed that the 'reasonable business
grounds' is a catch all provision and any cost implications for granting the
flexible hours would meet the threshold.[21]
Dr Anna Chapman submitted that the proposed list of examples of reasonable
business grounds is unhelpful, and suggested that the provision should 'be
amended to ensure that the employer goes through a process of weighing up
various factors, including the harm to the employee of not being accommodated,
good management practices...[and] the employer's own interests'.[22]
2.14
DEEWR advised that the Review Panel 'rejected arguments that a
definition of "reasonable business grounds" should be included in the
legislation'.[23]
DEEWR submits that the addition of examples of grounds that constitute
reasonable business grounds will assist:
...both employers and employees by providing guidance on sorts
of situations where it is reasonable for an employer not to agree to a request.
As is made clear in the Explanatory Memorandum the list is not exhaustive and
reasonable business grounds will always be determined having regard to the
particular circumstances of each workplace and the nature of the request made.[24]
2.15
DEEWR submitted that articulating the right to request in the Fair Work
Act can benefit employees because more formal requests for flexible hours are
likely to be made, and agreed to.[25]
The committee trusts that further consideration will be given to expanding and
clarifying the right to request flexible working hours when the bill is amended
again in the future.
Consultation on changes to rosters
2.16
Part 4 of Schedule 1 of 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.
2.17
Employer groups strongly objected to this proposal, submitting that this
amendment reduces flexibility and is problematic where businesses need to
quickly respond to changing circumstances.[26]
During the Melbourne hearing Mr Cairney, Business SA, submitted that the
proposed changes would make consultation unworkable, particularly for small
business. Indeed, Mr Cairney argued that the proposed requirement to consult
would result in a loss of the grape harvest:
The consultation regarding losses et cetera takes no
consideration of what impost that puts on employers, because our reading of it
says that for almost every change to an employee's roster—and we are talking
about individual employees—there has to be consultation. If I am in the wine
industry and we are at vintage, to give you an example, once the sugar levels
reach a certain level the grapes have to be picked. And they have to be picked
quickly; otherwise, the sugar levels become too high and the quality of those
grapes deteriorate rapidly. People working in that industry know that that is
part of the industry, but if we are going to go through what is proposed in
these amendments then, frankly, those grapes will not be picked.[27]
2.18
The committee asked DEEWR to respond to Mr Cairney's evidence.
Mr O'Sullivan, Chief Counsel, disagreed that the consultation provisions
are burdensome on businesses, and advised that the example provided about the
sugar levels in the grapes increasing would not require roster consultation:
I think there was a bit of a misunderstanding as to what these
provisions relate to. They apply to terms that will be included in modern
awards and enterprise agreements, and these provisions will only apply to
changes to an employee's regular roster or ordinary hours of work...the example
that the witness gave, which is that an unanticipated rise in sugar levels—or
whatever—would not require a change to a regular roster or ordinary business
hours. It would be a change to the hours to do with a particular emergency, and
that would not require such consultation under these provisions. [28]
2.19
DEEWR explained that obligation to consult consists of three simple
steps: to explain the changes to the employees, to hear the views of employees
and then to consider these views and make a decision. There is no prescriptive
process that must be followed beyond this and consultation must not occur
within a particular time frame.[29]
The SDA called for the bill to be amended to add the word 'genuine' to remind
employers that they must genuinely consider any views about the impact of the proposed
change on workers.[30]
Committee view
2.20
Given that these changes are targeted at encouraging conversations
between employees and employers, and there is no obligation to agree to
requests and there is no review by the Fair Work Commission, it is difficult to
accept arguments presented to the committee that these changes will impose an
unfair administrative burden on businesses. Every day in workplaces across
Australia employers are negotiating flexible working arrangements with
employees and consulting about roster changes. The vast majority of employers
are already accommodating the responsibilities of workers where it is
practicable. Therefore, in large part, the amendments in the bill represent a
codification of existing practice.
Protections for pregnant workers
2.21
Schedule one also contains amendments to ensure the safety and wellbeing
of pregnant workers. The proposed amendments clarify the operation of special
maternity leave provisions, and provide pregnant employees with less than 12
months service with the right to transfer to a safe job. If no safe job can be
found, the employee is entitled to unpaid no safe job leave.[31]
2.22
Employer groups rejected these proposed amendments, submitting that
employers should not be required to find safe work or grant no safe job leave for
an employee who has served less than 12 months. The Ai Group explained that extending
the right to request safe work provision, coupled with a no minimum period of
service, impacts particular industries such as the lead industry where there is
no safe work.[32]
The SDA explained that lead is dealt with in a very specific way and labelled
the example provided as 'extreme'. [33]
2.23
The Ai Group also suggested that the balance is not right if a woman
could commence a new job and 'the day after they start could say, 'well, I am
pregnant and I now want a safe job'.[34]
Ms Therese Bryant, SDA, responded saying that the suggestion that a woman would
do this was 'absolutely ludicrous' and advised that she had never had an
employer complain to her about behaviour of this kind.[35]
2.24
The committee heard that these proposed amendments should be viewed as
technical amendments to address an oversight, as similar provisions to provide
safe work have been in Australian legislation for 27 years.[36]
2.25
The ACTU observed that the decision by an employer to provide a safe job
for a pregnant worker is usually an excellent investment for the company and
usually only requires minor adjustments to work practice. The SDA advised that
employers commonly adjust work duties to accommodate worker needs, most often
for injured workers:
The subjective decision around light work and suitable duties
is something that employers are well versed in. They do it every day with an
injured worker. They have to understand safe weights, lifting requirements,
traffic management, climbing ladders, pulling loads, pushing loads, prolonged
standing at checkouts. These are all issues that employers deal with every day
with injured workers. A pregnant employee will present with some issues
generally in our industry regarding lifting and that would not be an uncommon
issue for a retailer to deal with at all. Also, there is the provision of
seating where appropriate for a worker who is engaged in long-term standing,
which is the nature of retail work. It is not a subjective thing. They have
risk assessments done on it; it is the language that they speak every day in
retail. So it would not be a foreign concept.[37]
2.26
DEEWR submits that these changes will ensure that all pregnant employees
are safe at work and are not disadvantaged as a result of their pregnancy. The
changes also protect the employers from having to pay no safe job leave for
workers who have served for less than 12 months.[38]
2.27
The bill also 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.[39]
This amendment implements the Review Panel's recommendation that taking special
maternity leave should not reduce an employee's entitlement to unpaid parental
leave. The amendment is proposed on the basis of fairness, DEEWR explains that:
The Review Panel formed the view that there is little
justification for reducing an employee’s overall unpaid parental leave
entitlement on the basis that the employee is required (for reasons beyond her
control) to access the special maternity leave entitlement.[40]
2.28
The ACTU described this reform as a 'sensible approach, given that leave
is provided for a different purpose'.[41]
The Australian Industry Group noted that 'this provision would appear to have
few adverse impacts upon employers'.[42]
Committee view
2.29
Employers have a long established duty to ensure that workplaces are
safe environments for all workers. The committee agrees that the proposed
enhanced protections for pregnant workers are sensible, and in large part
consist of technical amendments to correct a previous oversight.
Modern Awards Objective
2.30
Schedule 2 amends the modern awards objective set out in section 134 of
the Fair Work Act. The amendment proposes that the Fair Work Commission, 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.
2.31
Employer groups opposed this reform, arguing that these considerations
should be dealt with by the Fair Work Commission in its normal arbitration
processes.[43]
Employer groups also suggested that the amendment would require every award to
'include overtime and penalty rates'[44]
and would result in 'hamstringing the Fair Work Commission in dealing fairly
with penalty rates'.[45]
2.32
Employee groups supported this reform, noting that the proposed change
largely 'reflects the status quo' that prevails in relation to awards and
provides additional support for workers given 'the frequency and severity of
attacks on penalty rates in proceedings before the Fair Work Commission'.[46]
2.33
DEEWR explained that the amendment introduces an explicit obligation on
the Fair Work Commission to take into account penalty rates. However, the
decisions as to what, if any, penalty rates should apply, still rests with the
Fair Work Commission.[47]
Mr John Kovacic advised that the Fair Work Commission may still decide that
additional remuneration is not appropriate, and indeed, some modern awards do
not have 'provision for additional remuneration' because 'of the nature of work
in that particular industry'.[48]
Committee view
2.34
The proposed amendment to the modern award objectives explicitly requires
the Fair Work Commission to consider the need to provide additional
remuneration for workers who are working unpopular hours. The proposed
amendment does not purport to dictate to the Fair Work Commission the decision
it must make in a particular case, and each case will be decided on its merits
in the usual arbitration process. Neither does the amendment require additional
remuneration to be paid in all circumstances, as some businesses fear it does.
Anti-bullying provisions
2.35
Schedule 3 of the bill contains anti-bullying amendments to enable a
worker who is bullied at work to apply to the Fair Work Commission for an order
to stop the bullying. These amendments are part of the government's response to
the House of Representatives Standing Committee on Education and Employment
report Workplace bullying "We just want it to stop".[49]
2.36
The SDA reported a significant increase of bullying in workplaces in
recent years. The committee heard that raising claims of bullying often leads
to further bullying. Vulnerable groups include injured workers, pregnant women
and workers with caring responsibilities.[50]
2.37
All submitters and witnesses to this inquiry were united in opposition
to bullying in the workplace.[51]
Disagreement focused on the best way to protect workers and provide an adequate
means of redress.
2.38
Employer groups submitted that the proposed expansion of the Fair Work
Commission's jurisdiction may interfere with internal workplace investigations
and remedies, and the Fair Work Commission may not be equipped to promptly and
adequately deal with complaints.[52]
Employers were concerned that employees who have experienced discipline will
bring vexatious actions.[53]
Finally, the Ai Group, AMMA and others submitted that bullying should be dealt
with as a work health and safety issue, and managed in that jurisdiction.[54]
2.39
AMMA explained that its members usually engage the services of an
independent investigator to assess bullying claims promptly.[55]
The SDA advised that this was not the usual practice in the Retail Sector,
where investigations are usually conducted by an internal person and are not
always thorough or independent.[56]
2.40
The ACTU and the SDA view the proposed changes as an important first
step and have also made some recommendations for how the provisions could be
improved. The ACTU and the SDA recommended that the definitions used by the
bill should ensure that all bullying behaviour is captured by the definition;
particularly group bullying over a period of time. According to their
recommendations, these changes are necessary to allow the Tribunal to deal with
bullying complaints where they would otherwise be frustrated on a point of
technical jurisdiction.[57]
2.41
The ACTU submitted that bullying is a workplace relations issue as well
as a work health and safety issue. During the Melbourne hearing Mr Tim Lyons
explained to the committee:
I genuinely think that it is both. There is clearly an
occupational health and safety dimension to bullying, but I think it is a
general issue on behaviour and workplace relations. Therefore we think that
these provisions are a sensible response. If the nation has a specialist
workplace relations tribunal, this is an appropriate jurisdiction for it to
have, given that there is significant evidence before the parliament in the
form of that House of Reps inquiry that this is a very significant problem.[58]
2.42
The Department explained that these provisions are designed to work with
rather than replace work health and safety legislation, and, further, that the
reforms are necessary to help prevent bullying. Mr Jon Kovacic explained during
the Melbourne hearing:
The first point I would make in respect of the bullying
provisions in the bill is that they are designed to complement not to supplant
work health and safety legislation. The second point that I would make is that,
in the context of the House of Representatives committee inquiry, which
received in the order of 300 submissions, a constant theme in those submissions
was the absence of a mechanism where a worker who was being bullied could seek
quick redress to try and have the bullying stopped. It is against that
background that that particular committee made a recommendation, one of the 23
recommendations, that the government should put in place a mechanism to give
access to a speedy resolution or a mechanism to deal with allegations of
bullying. That is what the provisions here do.[59]
2.43
DEEWR is working with the Fair Work Commission to provide advice about
how the provisions in the bill will work in practice.[60]
Committee view
2.44
Employers and employees realise the damage that bullying wreaks upon
workers, their families and on their productivity. All workplaces should be
free from bullying and, where bullying complaints arise, it is imperative that
prompt, independent attention is given to resolve complaints. The reforms do
not prevent employers from resolving bullying complaints internally and the
committee notes the evidence that this occurs in many instances. The amendments
proposed by these provisions provide a safety net for employees when prompt and
appropriate action is not taken by the employer.
Right of entry
2.45
Schedule 4 contains a number of amendments to the Fair Work Act in
relation to right of entry. The amendments relate to the location of
discussions and interviews, and the facilitation of entry to premises in remote
areas by permit holders. These amendments also change the Fair Work Commission's
dispute settlement powers in relation to transport and accommodation
arrangements, and the frequency of entry to hold discussions.[61]
Most of the proposed changes to right of entry received qualified support from
workers and strong criticism from employer groups.
The importance of access
2.46
The Australian Mines and Metals Association (AMMA) submitted that union
officials have no need to access remote workplaces because meeting off-site would
be safer and more convenient. Alternatively, union workers could communicate
with workers via Skype or email.[62]
2.47
The Maritime Union of Australia (MUA) explained that access to remote
sites is important as it enables union officials to provide support to workers
after a tragedy. The committee heard that the intention of union officials in
tragic circumstances is to offer support to workers – not to interfere with any
investigation.[63]
The committee was provided with one example where access was not facilitated
and workers did not receive support for ten days, and only after the
intervention of the industrial regulator. Mr Michael Doleman, MUA, contrasted
that experience with the response when tragedy struck on the Karratha Spirit.
In this example, the employer promptly facilitated union access and this
ensured that workers received appropriate support in the aftermath of the
tragedy:
On 24 December 2008 there was a tragic event on board that
vessel when it was trying to disengage from the wellhead while a cyclone was
bearing down on the vessel. A young man, a father of two beautiful children,
was tragically killed when disengaging on the bow of that vessel... Half a
dozen of his colleagues were on the focsle head, the front of the ship, when
that incident occurred. It was a messy, messy site. They had to carry that
man's body into the accommodation. They endeavoured to resuscitate which,
unfortunately, they could not. Those guys were traumatised to the max. The
company, Teekay Shipping, had a union official out there that day, Christmas
Eve, without any question. They engaged with us. They knew the importance of
having a friendly face, an official who looked after that vessel and who knew
the crew intimately, go out to that ship and comfort those crew who were in a
traumatised state.[64]
2.48
The MUA explained that if employers do not facilitate access to remote
locations then it is impossible to access that site – even if the MUA chartered
its own helicopter. This is because 'it is physically impossible, if you could
find one, to then land on a helicopter pad attached to the floating production
facility without the right of entry.[65]
Concerns about facilitation of
access
2.49
AMMA and a number of other employer groups expressed strong concern
about the practical and cost implications of facilitating access to remote
sites. AMMA advised that in many instances it will simply be too expensive and
that the practical considerations are great.[66]
AMMA also suggested that the proposed changes would mean that at times
employers would have to specially charter aircraft for permit holders, and
there would not always be accommodation available. AMMA also expressed concern
about cost recovery, submitting that a single helicopter ride could cost $30
000 and accommodation is limited.[67]
2.50
The MUA submitted that these claims need to be subjected to close
scrutiny. The MUA acknowledged that at times there will be 'genuine
circumstances' at the site that mean that the employer is unable to facilitate
access. In these cases the MUA is happy to discuss alternative arrangements
with the employer to determine the most suitable time for access to be
facilitated, taking into account available transport and the work program.[68]
However, in many cases it is convenient for the employer to fly officers in and
out on the same day. For example, divers and certain contractors are routinely
flown in at 6am and flown home at 6pm.[69]
Lunch room as a default option when
agreement cannot be reached
2.51
Employer groups were universal in their criticism of the proposal to
specify the lunchroom as the default meeting space for unions and interested
employees, when no other space can be agreed to (as the law stands, if an
agreement cannot be reached then a request for review must be lodged with the
Fair Work Commission). The chief reasons offered were that non-union employees
should be able to have a meal break without union officials present and that
the law already provides that if union officials are dissatisfied with the room
available, a request for review can be lodged with the Fair Work Commission.[70]
2.52
A number of submitters provided examples where employers have made it
quite difficult for permit holders to meet with employees. The committee heard
that in some workplaces inappropriate rooms are provided, at times to
discourage employees from participating in discussions.[71]
The examples noted by the Review Panel included:
- an employer providing access to only one room across a site 3 km
long, where employees have a 20-minute break;
-
an employer providing access to half of a manager’s office,
divided by a partition, where the manager sits on the other side; and
-
an employer providing access to a meeting room in an
administration area that accommodates six employees where two lunchrooms are
available, accommodating around 100 and around 30 employees respectively[72]
2.53
The committee also heard that union officials prefer to meet with
interested workers somewhere private. For example, the MUA submitted that as
union workers are usually a small proportion of workers on the rig, union
officials will seek an agreed location that gives employees privacy and 'does
not disturb other workers either in their meal breaks or in their recreation
and down time'.[73]
The committee asked if the MUA ever had to meet in lunchrooms, and was told
that this does not occur as 'there is always somewhere you can go'.[74]
2.54
The Department advised that these amendments will encourage parties to
agree to a location for interviews or discussions and 'should assist to reduce
the incidence of conflict between occupiers and permit holders'.[75]
Expansion of the Fair Work
Commission's jurisdiction
2.55
Employer groups supported the proposed change to empower the Fair Work
Commission to review complaints about the frequency of union visits to a site.[76]
The MUA rejected this proposed change, submitting that there may be very
legitimate reasons why officials may need to visit a particular workplace
frequently. Where frequency is questioned the MUA would rather 'sit down with
the employer concerned and with the officials who are frequently visiting the
workplace and identify what the circumstances are'.[77]
During the Melbourne hearing Mr Doleman elaborated on this point:
We just do not think one size fits all. We think that there
needs to be an appropriate consideration of what the need is for visitations,
and if there needs to be a modification or a reduction of those visitations
then so be it. Or it may well be that the employer has not been briefed well
enough as to why those visitations are taking place. We think a more
conciliatory approach to that element is a better way to go because, quite
frankly, if an arbitrated decision is taken and that union official or
officials can no longer visit that workplace, the first thing that is going to
happen is that the workers in that workplace are going to be dirty on their
boss or their employer for reducing the right of entry to their officials. So
what you can do is agitate—and create a worse circumstance than that which may
already exist. In our view, Senator, the order of the day is, let's sit down
and talk about what the rationale and the reasons are for those frequencies.[78]
2.56
The Department advised that the Review Panel observed that some permit
holders were visiting workplaces too often, and this was having an adverse
impact on employers. The Department noted that if the bill proceeds, the Fair
Work Commission would still be required to determine each case on its merits
and take into account the particular circumstances of the workplace and its
workers:
FWC will determine in each case, based on the particular
circumstances, what is an unreasonable diversion of an occupier’s critical
resources. This will ensure that FWC takes into consideration, for example, the
relative size of the workplace and capacity for the employer to manage right of
entry visits and mean that a permit holder’s legitimate entry rights are not
restricted without due cause. In line with the Object of the right of entry
part of the FW Act the provisions are designed to balance the right of permit
holders to have discussions with employees in the workplace with the right of
occupiers of premises and employers to go about their business without undue
inconvenience.[79]
Committee view
2.57
The proposed changes to facilitate access by permit holders to remote
sites are reasonable and in large part represent current arrangements between
unions and employers. The proposal to establish the meal room as the default
meeting place when no other place can be agreed is sensible, and will promote
negotiation between parties. The expansion of the Fair Work Commission's
jurisdiction will also promote discussion between parties and promote informal
resolution of disagreements.
Conclusion
2.58
While offering general support, employee groups and a number of other
submitters have made recommendations to expand protections for employees. In
contrast, the bill has received strident criticism amongst employer groups.
Having carefully considered the evidence provided, the committee is supportive
of the bill. Certainly there are areas where further amendments should be made
in the future, however the bill itself represents a good balance between the
interests of employers and employees at this time.
2.59
The committee notes that the Minister for Workplace Relations intends to
introduce further amendments to the Fair Work Act in the winter sittings. The
committee trusts that these further amendments will address the areas of reform
identified by employer groups as areas in need of attention.
Recommendation 1
2.60
The committee recommends that the bill be passed.
Senator Gavin
Marshall
Chair,
Legislation
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