Workwise - Important changes to the Fair Work Act 2009

On 27 June 2013, the Federal Government passed legislation to amend the Fair Work Act 2009 (FW Act). The new laws are part of the second tranche of changes made to the FW Act from the Review Panel's Report last year. There are three key areas of change, namely:

• new anti-bullying laws;
• family friendly arrangements; and
• right of entry laws.

Anti-bullying laws

We consider that the most significant of the changes to the FW Act are the new anti-bullying laws. Under the new laws, a worker who reasonably believes they have been subjected to workplace bullying will be able to apply to the Fair Work Commission for an order to stop the bullying.

The term 'worker' adopts the broad definition set out in the Work Health and Safety Act 2011 (Cth) (WHS Act) and includes contractors, subcontractors, volunteers, apprentices, trainees, students on work experience and outworkers, as well as certain other classes of deemed workers under the WHS Act.

Workplace bullying is defined as occurring when an 'individual or group of individuals repeatedly behave unreasonably towards the worker (or a group of workers of which the worker is a member) and that behaviour creates a risk to health and safety'. Unreasonable behaviour will be determined based on an objective test. It does not include reasonable management action carried out in a reasonable manner.

It is intended that the anti-bullying laws will provide an accessible, quick and cheap mechanism for workers who are bullied at work. As such:

 

• the new laws will require the Fair Work Commission (FWC) to start dealing with any such application by a bullied worker within 14 days of that application being made;
• the FWC will be able to make 'any order it considers appropriate' in order to stop the bullying.

The FWC will be able to inform itself by various means, which may include contacting a bullied worker's employer (or other parties to the application), requiring certain documents to be provided (such as workplace anti-bullying policies or procedures), as well as holding a conference or even a formal hearing. The FWC may make recommendations or express an opinion in the course of dealing with the matter. However, the new laws do not make it an offence to engage in workplace bullying. Therefore, whilst an alleged bully may be involved in FWC's determinations, they will not have a determination made against them. A breach of an order made by the FWC that relates to workplace bullying may carry a maximum penalty of $51,000.

Under the new laws, the FWC will not be able to order the reinstatement of a worker, nor can it order payment of compensation or pecuniary penalties. Examples of orders that may be made by the FWC include:

• orders relating to compliance with (or a review of) a workplace bullying policy or procedure;
• the provision of training and support to workers;
• monitoring of workers' behaviour by employers; and
• orders directed at certain individuals to stop engaging in bullying behaviours.

Workers will be entitled to pursue other proceedings even if an application has been made to the FWC under these provisions.

Recommendations

We recommend that employers:

• educate and train employees about the effects of the new anti-bullying laws and internal procedures and policies;
• evaluate workplaces for potential risk areas, individuals and/or groups;
• provide coaching or mentoring systems for employees;
• implement or update internal workplace anti-bullying procedures or policies and make sure that they are specifically adapted for your workplace;
• prepare guidelines for managers to follow when dealing with allegations of workplace bullying; and
• take steps to ensure that adequate measures are taken and documented when investigating any reported incidents of workplace bullying.

Given the potential for legitimate performance management steps to be perceived by some workers as potential 'bullying', it would also be prudent for employers to prepare guidelines for managers when conducting performance management procedures in order to ensure that any ongoing performance management issues are documented and handled expediently and appropriately, to ensure that any such steps can be objectively viewed as 'reasonable management action' undertaken by an employer.

The new anti-bullying laws will commence operation on 1 January 2014.

Family-friendly measures

Broadly, the changes in relation to family-friendly arrangements include:

• a broadening of the eligibility criteria for employees who are carers to request flexible working arrangements. A new provision has also been introduced which enables an eligible employee to request part-time work following a period of leave (in relation to the birth or adoption of a child) in order to help them meet their caring responsibilities;
• additionally, the provisions dealing with an employer's refusal of a request for a flexible work arrangement have been amended to include a non-exhaustive list of reasons (for refusal) that may properly constitute 'reasonable business grounds'. Employers are now also required to set out the reasons for any refusal in a written response to the employee. These changes are anticipated to take effect prior to 27 December 2013;
• the period of special maternity leave (which can be taken by an eligible pregnant employee who becomes unfit for work during her pregnancy) will no longer reduce a pregnant employee's entitlement to 12 months of unpaid parental leave by an equivalent amount. This change is anticipated to take effect prior to 27 December 2013;
• the period of concurrent parental leave that may be taken by an employee has been increased from 3 weeks to 8 weeks, following the birth or adoption of a child.  This change is anticipated to take effect prior to 27 December 2013;
• modern awards must now include a term requiring employers to engage in a genuine consultation process with all employees (permanent and casual) in relation to changes to their regular rosters or ordinary hours of work. Employers must also take a consultative approach when considering such changes, by inviting employee comments and then giving consideration to those comments. This change will commence operation on 1 January 2014, and will apply to a modern award that is in operation on or after that date, whether or not the award was made before that day;
• the entitlement of a pregnant employee to transfer to a 'safe job' has now been extended to all pregnant employees, regardless of their length of service, whereas previously, only pregnant employees who had completed a 12 month period of service were entitled to transfer to a 'safe job'. The changes also include the introduction of unpaid 'no safe job' leave for pregnant employees who are not entitled to unpaid parental leave (having not completed 12 months of prior service). This change will commence operation on 1 January 2014. 

Recommendations

We recommend that employers:

• implement, review and update internal policies and procedures in relation to parental leave and flexible work requests;
• train managers and supervisors on how to deal with requests for flexible work arrangements and also the grounds upon which requests can be refused; and
• set clear expectations at the outset of individual flexible working arrangements and implement trial periods and regular reviews with employees.

Right of entry

The changes to union rights of entry rules include:

• changes to the locations in which interviews and discussions with workers may take place;
• conferring of power to the FWC to deal with disputes regarding the frequency of visits to premises to hold discussions with employees and to make orders to suspend, revoke or impose conditions on entry permits held by union representatives;
• a new regime which will (in certain circumstances), require employers to facilitate transport and accommodation arrangements for union officials in remote areas, in order to assist union representatives in the exercise of their rights under the Act.

The new right of entry provisions (as passed) will commence operation on 1 January 2014.