The Federal Coalition’s recently released workplace relations policy largely maintains the status quo through retention of the Fair Work Act. It does however create increased opportunities for workers to trade off entitlements and places new restrictions on unions’ rights to enter workplaces.
The policy will not re-introduce Australian Workplace Agreements with Opposition Leader Tony Abbot saying during the announcement: “[t]here won’t be another WorkChoices – it is dead, buried and cremated.”
In an effort to assist our clients best prepare for a possible change of government in September, we have developed the following summary of the policy’s 14 key points:
1. Maintaining existing Fair Work laws
The Coalition has committed to retain the existing Fair Work legislation and gradually implement relatively minor changes rather than repeal the existing laws.
2. Reviewing Fair Work laws
The Productivity Commission will be asked to conduct an “objective and comprehensive” review of the Fair Work laws. Further reforms will be considered (including the potential to create an independent Fair Work Commission appeal jurisdiction) but not implemented unless the Coalition achieves a second term in government (with a mandate for further reforms sought during the 2016 election).
3. Paid Parental Leave Scheme
A Paid Parental Leave Scheme will be established which provides mothers with 26 weeks paid parental leave at full replacement wage (up to $150,000) or the national minimum wage (whichever is greater) plus superannuation.
4. Union right of entry
The Coalition is proposing union right of entry limits under the current legislation. In particular, a union will only be able to enter a workplace if:
a) the union is covered by an enterprise agreement that applies to the workplace; or
b) the union is a bargaining representative seeking in good faith to make a workplace agreement to apply in that workplace; and
c) union members in the workplace have requested the union’s presence.
If a workplace is covered by a modern award or enterprise agreement that does not cover a particular union, union access will only be permitted if:
a) the union can demonstrate they have, or previously have had, a lawful representative role in that workplace; and
b) there is evidence that the workers or members have requested the presence of a union.
The Fair Work Commission will have power to enforce these rules and union officials will be provided with photographic entry permits (which may be required to be produced upon request).
These changes will not impinge unions’ rights to investigate breaches affecting their members, representing a member in a dispute, investigating health and safety breaches or the special entry provisions for outworkers in the textile, clothing and footwear sector.
5. The Australian Building and Construction Commission
The Australian Building and Construction Commission will be re-established, replacing the Fair Work Building Construction unit.
6. Protecting members of Registered Organisations
Registered industrial organisations and their officials will be subject to the same standards as companies and directors under the Corporations Act 2001, including criminal penalties and an increase in fines for breaches of certain duties. Fair Work (Registered Organisations) Act 2009 financial disclosure and reporting requirements will also be reformed to be more closely aligned to the corporations law and ASX corporate governance rules.
The Coalition is also proposing to establish the Registered Organisations Commission to enforce and police these increased reporting and compliance obligations on registered organisations. This Commission would have similar policing powers and government independence to ASIC.
7. Assisting small business workplaces
A Coalition Government would develop a guidebook, helpline and app to assist small businesses comply with the legislative framework. In addition, immunity from pecuniary penalty prosecutions may be applied to small businesses which pay or apply the wrong employment conditions if the employer did not do so deliberately and previously sought advice from the Fair Work Ombudsman on the same issue.
8. Workplace flexibility
The existing restrictions on the use of Individual Flexibility Arrangements in certain circumstances will be removed. Labor’s ‘Better Off Overall Test’ will be retained which will ensure that Individual Flexibility Arrangements will result in workers being better off. The notice period to terminate an Individual Flexibility Arrangement will be extended to 13 weeks.
9. Workplace bullying
Labor’s proposed Fair Work Act 2009 (Cth) amendments to address workplace bullying will be maintained. However, workers will be required to have first sought preliminary help, advice or assistance from an independent regulator before making a claim to the tribunal. These changes will also be extended to cover the conduct of union officials towards managers, employees and workers.
10. Greenfield agreements
New “Good faith bargaining” rules for negotiations with unions for enterprise agreements for new projects (“Greenfields Agreements”) will require negotiations to be completed within three months of a project starting. If this is not achieved, the Fair Work Commission will be given powers to make and approve the agreement so long as it provides for pay and conditions which are consistent with prevailing industry standards. It must also pass the “Better Off Overall Test” and “Public Interest Test” under the current Fair Work Act.
11. Underpayment claims
The Coalition will ensure that workers who are underpaid are provided with the interest earned on back pay held for them by the Fair Work Ombudsman.
12. Enterprise bargaining
Current laws will be amended to ensure that protected industrial action can only occur after the Fair Work Commission is satisfied that a “genuine and meaningful” discussion between workers and the relevant business has occurred. Additionally, the Fair Work Commission must be satisfied that the parties have discussed productivity as part of the enterprise agreement negotiation process prior to approving the agreement.
13. The Road Safety Remuneration Tribunal
The Road Safety Remuneration Tribunal will be reviewed to determine if a further level of regulation is required.
14. Recommendations from the Fair Work Review Panel report
The Coalition has committed to adopt 13 Fair Work Review Panel recommendations which have not yet been implemented by the Government. A full list of these relevant recommendations can be found on Page 36 of the policy.
There is no doubt the Coalition has taken a cautious and approach with this policy platform, a position that has disappointed several business and industry groups. The Australian Chamber of Commerce and Industry says it is dissatisfied that individual contracts have been ruled out for the Coalition's first term should they win government. "They have not gone far enough with this policy announcement," Peter Anderson, the group’s CEO, said after the announcement. However, increased reform has been foreshadowed should the Coalition achieve a second term.