14 Aug Update on Review of Fair Work Act
Review of the Fair Work Act Update
In TTIA’s Circular 1 of 2012 we informed members about the imminent review of the Fair Work Act and asked members to provide any feedback on the impact of the Fair Work Act on their business. We would like to take this opportunity to thank those who provided feedback. The TTIA subsequently lodged a Submission with the Department of Education, Employment and Workplace Relations.
The Fair Work Act Review Panel (the Panel) received over 250 submissions and recently the Panel released their findings in a report entitled Towards more productive and equitable workplaces, a review of the Fair Work legislation. In a covering letter to the Hon Bill Shorten MP, the Minister for Employment and Workplace Relations, the Panel expressed their view that the legislation is operating broadly as intended and that its effects have been consistent with its stated objectives.
However, despite the Panel’s optimism they have made 53 recommendations to the Government on areas in the legislation where it has not operated as envisaged and other changes to improve the operation to deliver fair outcomes. Prior to delivering the report the Panel consulted with trade unions, employer associations, directors, large employers, industrial lawyers, academics and members of community groups.
Some of the Panel’s recommendations of interest to the TTIA’s members are set out below:
- The role of Fair Work Australia and the Fair Work Ombudsman should be extended to include active encouragement of a more productive workforce via workshops, conferences and best practice productivity enhancing provisions in agreements.
- The Fair Work Act should be amended so that it is clear that employees do not accrue annual leave while absent from work and in receipt of workers’ compensation payments. This is welcome news; it will be good to have clarity on this matter as this is a question the members regularly call the TTIA about.
- The Fair Work Act should be amended to provide that annual leave loading is not payable on termination of employment unless a modern award or enterprise agreement expressly provides to that effect. Recently, the Fair Work Ombudsman has been taking a very liberal interpretation of the Fair Work Act stating that annual leave loading is payable on termination of employment in all respects.
- A recommendation that Commonwealth, State and Territory Governments expedite the development of a national long service leave standard by 1 January 2015.
- The Panel have recommended that the Government consider limiting the number of public holidays under the National Employment Standards on which penalty rates are payable to a nationally consistent number of 11 days.
- Individual flexibility agreements should have a termination period of 90 days instead of 28 days and a requirement that employers notify Fair Work Australia of the details of individual flexibility arrangements. This recommendation was in response to submissions by employer groups that the low incidence of individual flexibility agreements was partly due to the relatively short notice period of termination.
- The Panel has recommended that the time limit for employees lodging unfair dismissal applications be increased from 14 to 21 days. In the TTIA’s Submission we requested that this period be reduced to 7 days and this was noted in the Panel’s report. The Panel commented that extending the time limit would give parties more time to discuss grievances before proceedings are commenced. The Panel also recommended less time for making adverse action claims.
- That Fair Work Australia be given discretionary powers to dismiss unfair dismissal applications if parties have settled or where an employee fails to attend a proceeding or fails to comply with Fair Work Australia’s directions or orders relating to the application. The Panel also recommended that employees provide more information about the circumstances of their dismissal in their application for unfair dismissal.
- Fair Work Australia to have the power to award costs against a party who is unreasonably pursing an unfair dismissal claim.
- Fair Work Australia be given greater powers to resolve disputes around right of entry issues, specifically in relation to where meetings are held and the frequency of workplace visits by the union in a manner that balances the right of unions to represent their members in a workplace and the right of occupiers and employers to go about their business without undue inconvenience.
- The right to request flexibility under the National Employment Standards should be extended to capture a wider range of caring obligations and other circumstances, and a requirement to hold a meeting to discuss a flexible work request with employees.
The TTIA will keep members informed if any of the recommendations are formally implemented. If members have any questions about the above recommendations, or would like further information about the Panel’s report, please contact the TTIA office on 02 9264 0011.
Brian Beecroft, Chief Executive Officer