Fair Work Changes

06-01-2014

1 January 2014 Changes – Fair Work (Amendment) Act 2013

There are several  changes to the Fair Work Act 2009 that commence on the 1st January 2014, as a result of amendments that were passed in 2012 and 2013.

The
 changes to the Fair Work Act include:

  • New anti-bullying measures
  • Changes to right of entry
  • New consultation terms when changing regular rosters and working hours
  • Arbitration available for dismissal disputes at the Fair Work Commission
  • New timeframes for unlawful termination applications
  • Updated superannuation terms


Anti-bullying orders

A worker who has been bullied at work can apply to the Fair Work Commission (FWC) for an order to stop the bullying. The FWC will have to start dealing with the matter within 14 days.


Under the Fair Work Amendment Act bullying happens when:

  • An individual or group repeatedly behaves unreasonably towards a worker or group; and or
  • The behaviour creates a risk to health and safety.


Bullying doesn’t include:

  • One off instances of insensitivity or rudeness, or
  • Reasonable management activities carried out in a reasonable manner.


To apply to the Fair Work Commission a worker must be working for a constitutionally covered business. A constitutionally covered business includes:

  • Constitutional corporations (e.g. Pty Ltd and Ltd businesses)
  • Sole traders, partnerships and trustees in ACT and NT
  • Incorporated volunteer associations that have at least 1 employee


If a worker doesn’t work for a constitutionally covered business, they cannot apply to the Fair Work Commission to stop bullying.  However they can get advice from their Work health and safety body in their state or territory.


There is no time limit for making an anti-bullying application, but the worker must still be working at the business.  Workers that have been dismissed cannot apply for an order, but they may still be able to pursue an unfair or unlawful termination claim.


Changes to right of entry

The changes to right of entry affect the rights and powers of officials of organisations who have entry permits to enter businesses. The changes will mean that:

  • Interviews and discussions with employees must be held in an area that the business and permit holder agree to (lunch rooms can be used if no agreement can be reached);
  • The Fair Work Commission will be able to:-
    • Deal with disputes about the frequency of visits;
    • Deal with disputes about accommodation and transport arrangements; and
    • Ensure appropriate conduct by permit holders while they are receiving accommodation or being transported under the arrangements.


Genuine Consultation on changes to rosters or working hours


All Modern Awards and enterprise agreements will have to include a term that requires employers to consult with employees about changes to their regular roster or ordinary hours of work.


This means the employer will have to consult with the employee when they want to change the employee’s regular roster hours.


The employer will need to do the following:

  • Give information to the employee about the change;
  • Let the employee give their views about the change (e.g. impact to family or caring responsibilities); and
  • Consider the employee’s view on the impact of the change.


The Fair Work Commission will vary all modern awards to include these new terms.  Click on the following link to a summary of the Fair Work Full Bench Decision.  Summary of Decision – Consultation Clause


Arbitration of General Protections and Unlawful Termination dismissal Dispute


A person who makes an application the Fair Work Commission to deal with a general protections or unlawful termination dismissal dispute can agree to have the matter arbitrated.


If both parties agree to arbitration, the Commission will make an order that the parties have to follow (e.g. an order to reinstate the employee).


New timeframe for unlawful termination applications


This now means that all dismissal applications must be made within 21 days of the dismissal; this includes unfair dismissal, general protections and unlawful protections.


Changes to Superannuation Terms in Modern Awards


The Fair Work Act 2009 has been changed in line with the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012. The changes include compulsory superannuation terms in modern awards and a review process for these terms.


For further information contact Community Management Solutions on 1300 007 110.

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