We’re sure you all waited for the Coalition’s announcement of their workplace law policy with bated breath – it looked to be a fine balancing act for Tony Abbott to keep the business sector happy (especially with looming pressure from the mining sector) and ensuring workers weren’t spooked by anything that resembled a return to Work Choices.
It is therefore unsurprising that the workplace law policy, announced on 9 May 2013 set out in a 38 page document, was described by political editor Michael Gordon as “every bit as cautious, politically canny and modest as we expected – not WorkChoices Lite, just Lite.”
At any rate, it’s understood that any major changes to workplace law under the Fair Work Act won’t occur until a Productivity Commission has made findings, followed by a mandate from voters at the next election in 2016. In the meantime, the following is a summary of the “modest” gambit of changes detailed in the proposed workplace law policy:
- The Fair Work Act and the Fair Work Commission will be retained, with some changes.
Presumably in an effort to allay fears of an overhaul of legislation, the Coalition policy opens with “The Coalition believes that it is better to work with and build on what we have now than it is to go back to square one and start again, as some have suggested”. Having recently undergone a name change, the Fair Work Commission will be glad they don’t have to update the stationery again.
- The Productivity Commission will undertake a review of the current Fair Work laws
The Coalition is of the opinion that the Government’s Fair Work review in 2012 was “weak” and proposes to investigate the effect the Fair Work laws had on productivity, although no follow from such review is expected prior to the 2016 election.
- A new Paid Parental Leave scheme
Those entitled to paid maternity leave under the Government’s scheme currently receive 18 weeks at minimum wage (about $31,500 per annum). The Coalition is proposing to offer 26 weeks at either full replacement wage (up to $150,000 per annum) or the minimum wage, whichever the greater.
- Union “Right of Entry” provisions to be watered down
Concerned that unions are making “unreasonable attempts” to access the workplace under the current workplace laws, the Coalition’s policy indicates a union representative may only seek to enter a workplace if:
- “The union is covered by an enterprise agreement that applies to the workplace; or
- The union is a bargaining representative seeking in good faith to make an agreement to apply in that workplace; and
- There is evidence that it has members in that workplace who have requested their presence.
If a workplace is covered by a modern award, or, an enterprise agreement that does not cover a particular union, access will only be allowed if:
- The union can demonstrate they have, or previously have had, a lawful representative role in that workplace; and
- There is evidence that the workers or members have requested the presence of a union.”
- Re-establish the Australian Building and Construction Commission (ABCC)
The official purpose of the ABCC will be to “improve productivity” on work sites, although prior to it’s abolition by the current Government, it came to be regarded as kind of an antithesis for the unions. The Coalition has indicated the new ABCC “will have appropriate and effective safeguards to ensure due process and transparency”.
- Further requirements for transparency of unions and accountability to their members
The Coalition proposes to establish a “Registered Organisations” watchdog, to ensure unions are doing the right thing by their members. It also proposes to increase accountability of union officials by increasing penalties and making union officials subject to the same fiduciary and statutory duties as companies and their directors as set out in the Corporations Act 2001.
- More assistance for small business
The policy proposes more guidance on having employees as a small business, (including the development of an App to assist with this) and potential for immunity from a Fair Work Ombudsman pecuniary penalty prosecution, if a the small business owner can demonstrate an underpayment or wrong employment conditions was a “genuine mistake”.
- Creating further opportunities for Individual Flexibility Agreements (IFA)
While the “Better Off Overall Test” (as devised by the Government) will still stand, the Coalition proposes that IFA cannot be restricted from occurring in an Enterprise Agreement. The notice to terminate an IFA will also be extended from 4 weeks to 13 weeks.
- Addressing workplace bullying
The Government have recently proposed further measures to address bullying, giving an employee who reasonably believes they have been bullied at work the ability to apply to the Fair Work Commission for an order to stop the bullying. Concerned this measure will cause the Fair Work Commission to be “swamped”, the Coalition proposes this should occur only after “first trying to seek preliminary help, advice or assistance from an independent regulator.” If the employee’s concerns remain unresolved, he/she will then be able to seek assistance from the Fair Work Commission.
- Changes to “Greenfield” agreement timeframes
“Greenfield” agreements refer to Enterprise Agreements for new projects. The Coalition is concerned unions use the rules surrounding Greenfield agreements to deliberately delay and cause setbacks to a project. Under their proposed policy, they will require agreements to be reached within three months. Failing that, the matter will go to the Fair Work Commission for determination based on the current Government’s “Better Off Overall Test”.
- Underpayments repaid to workers will earn interest
The Coalition have promised that workers who are underpaid receive interest on back pay held for them by the Fair Work Ombudsman. Currently the interest is kept by the Government.
- Changes to enterprise bargaining strike provisions
Under this Coalition proposition, workers may only strike if the Fair Work Commission “is satisfied that there have been genuine and meaningful talks between workers and business at the workplace; and that the claims made by both parties are sensible and realistic.”
- A review of the Road Safety Remuneration Tribunal
The Coalition wish to undertake an urgent review of this Tribunal, and whether the need for this further level of regulation is necessary.
- Adapting some of the recommendations of the Fair Work Review
Finally, the Coalition has committed to implementing some of the recommendations made by this review that have not been implemented yet, in consultation with businesses and workers.
If the Coalition wins the next election, how will these changes affect your business? How will these changes affect workplace law? Will they help your business? Do we need more? Less?
To discuss how the above changes may affect your business, consult an HR lawyer or workplace law expert.
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issues.