Employment review: what's on the horizon for 2013

Articles Written by Andy Milidoni (Partner), Jane Trethewey

2012 was a busy year in employment law and workplace relations. With a Federal election to be held this year, it is likely that 2013 will be another eventful year. In this article, we outline our top ten issues from last year and outline the implications for employers.


What to look out for in 2013

Against the background of the developments in 2012, we outline below five areas in which changes have happened or are expected in 2013.

Paid parental leave for dads and partners

The Paid Parental Leave Act 2010 (Cth) was amended in October 2012 to provide for two weeks' paid dad and partner's leave. We discussed the changes in our article of 4 October 2012 titled "Getting ready for parental leave changes".

Dad and partner's pay is available to a father (including same or different sex partner or an adoptive parent) of a child that is born or adopted on or after 1 January 2013.

The recipient of dad and partner's pay must still satisfy the same minimum period of work test, maximum income test and Australian residency requirements that apply to parental leave pay. The payment will be made by the Federal Government at the national minimum weekly wage (currently $606.40 per week). While dad or partner's pay is paid in addition to any employer-funded leave or unpaid leave, it will not be paid at the same time as any employer-funded leave or while the father or carer is working.

Further amendments to the Fair Work Act

The Fair Work Amendment (Transfer of Business) Act 2012 and Fair Entitlements Guarantee Act 2012 both commenced on 5 December 2012. Together with the changes enacted by the Fair Work Amendment Act 2012 these Acts have introduced a number of significant changes in key areas of the workplace relations system. Further changes to the FW Act to reflect the remaining recommendations from the Fair Work Act Review Panel have been foreshadowed by Minister Shorten.

The form and extent of the changes, however, remain subject to consultation between the Federal Government, industry stakeholders and members of the National Workplace Relations Consultative Council.

On 11 February 2013, Minister Shorten announced that the FW Act will be amended to extend the right to request flexible working arrangements to a wider range of workers with caring responsibilities.

On 14 February 2013, Minister Shorten also announced that model consultation clauses in awards and agreements will be amended to require employers to genuinely consult about the impact of changes to rosters and working hours on an employee's family life.

Minister Shorten has also recently announced further changes to the FW Act to deal with bullying claims.

Review of modern awards and termination of NAPSAs

The now renamed Fair Work Commission is currently reviewing all modern awards as required under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.  The review, which began on 1 July 2012, is due to conclude on 31 May 2013. A number of modern awards have now been amended as a result of the review.

The transitional provisions, contained in a number of the modern awards, require increases in minimum rates from the first pay period on or after 1 July 2013.

These transitional provisions cease to operate from the beginning of the first pay period on or after 1 July 2014, when the minimum rates under awards will apply.

Notional Agreements Preserving State Awards (NAPSAs), being notional federal agreements that were created preserving the terms and conditions of employment in state awards and/or state legislation that applied before 27 March 2006 to employees of constitutional corporations in NSW, Queensland, Western Australia, South Australia and Tasmania, terminate on 1 January 2014.  Employers should confirm whether any NAPSAs currently apply in their workplaces, and determine what impact the termination of the NAPSAs will have on the application of industrial instruments in their workplace.

New workplace gender equality agency

The Equal Opportunity for Women in the Workplace Act 1999 has been replaced by the Workplace Gender Equality Act 2012, which commenced on 6 December 2012. We discussed the main changes in our Acumen article titled "Equal Opportunity Reporting Amendments".

Proposed consolidation of Federal anti-discrimination legislation

The exposure draft of the Human Rights and Anti-Discrimination Bill 2012 has been before a Senate Committee for inquiry and report. Submissions to the Committee closed on 21 December 2012 and the Committee's report was handed down on 21 February 2013.

The exposure draft Bill aimed to consolidate the five existing pieces of Federal anti-discrimination legislation into a single Act. Other changes included in the exposure draft included:

  • the replacement of "direct" and "indirect" discrimination by discrimination by "unfavourable treatment";
  • new protected attributes of sexual orientation and gender identity in public life;
  • new general exceptions of justifiable conduct and compliance with Commonwealth Acts;
  • changes to the vicarious liability test; and
  • the introduction of a shift in the burden of proof.

The proposed changes have attracted extensive community and media attention. Over 500 submissions were submitted to the Committee, and it is expected that there will be changes to the draft Bill as a result of the report. The report contains 12 recommendations in relation to the draft Bill, including:

  • an amendment to the definition of "gender identity";
  • the inclusion of "intersex status", "domestic violence" and "irrelevant criminal record" as protected attributes;
  • an amendment to the definition of "discrimination" to remove the reference to "conduct which offends, insults or intimidates" another person;
  • the inclusion of "voluntary or unpaid work" as an area of public life in which discrimination is prohibited;
  • amendments to the general exception of "justifiable conduct"; and
  • the removal of exceptions allowing religious organisations to discriminate against individuals in the provision of services, where that discrimination would otherwise be unlawful.

Three Coalition Senators put forward a dissenting report which opposed the passing of the Bill altogether, and two other Senators put forward recommendations additional to those contained in the main report.

When the updated Bill is available, employers should consider what impact the proposed changes will have on their anti-discrimination and harassment policies and practices going forward.
Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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