Australia

Key Points:

There's been movement on some - but not all - of the incoming Government's promises to reform workplace relations law.

On election night we outlined the newly elected Coalition Government's election promises/proposed changes for workplace relations. After 100 days of the Coalition being in Government (albeit with an unchanged Senate) we now take a look at the Coalition's progress on delivering them.

Paid Parental Leave Scheme

Election promises/proposed changes: Increase in paid parental leave from 18 weeks to 26 weeks at actual wage (as opposed to the national minimum wage).

$150,000 cap (plus super).
"Work test" remains.
No paymaster duties: Centrelink to administer directly.
Fathers: two weeks of the 26, or can be designated caregiver.
The full policy is not expected to commence until 1 July 2015.

Progress in the first 100 days of government: Given the projected timeframe for implementation of the increase as expected no action on the major change has yet occurred.

The Social Services and Other Legislation Amendment Bill 2013 was introduced into Parliament on 20 November 2013. If passed by both houses this legislation will reduce the administrative burden on business and allow for parental leave to be paid directly by Centrelink from 1 March 2014.

Employee entitlements

Election promises/proposed changes:

Two-year delay on scheduled superannuation contribution increases (increments to recommence 1July 2016).
Clarifying that annual leave loading is not generally payable on termination.
Interaction between annual leave and workers' compensation to be clarified - (clarification that there is no accrual during this period)
Commitment (again) to introducing national long service leave scheme.

Right to request flexible arrangements to remain.

Progress in the first 100 days of government: The Minerals Resource Rent Tax Repeal and Other Measures Bill 2013 was introduced into Parliament on 13 November 2013. If the bill is passed by both houses the superannuation guarantee rate will not increase to 9.5% until 1 July 2016 and will not reach 12% until 1 July 2021.

There has been no progress on the other proposed changes/clarifications on employee entitlements.

Bullying

Election promises/proposed changes: New jurisdiction introduced by the Labour Government to stay (and will commence 1 January 2014). Forecast amendments includes that:

employees will have to first "seek preliminary help, advice or assistance from an independent regulator" (ie. WorkSafe); and
jurisdiction will also apply to Union officials.

Progress in the first 100 days of government: The forecast amendments have not yet been introduced.

The Fair Work Commission has released a case management model setting out how it intends to deal with new matters. It has also released a draft bullying bench book as a guide for parties on how to prepare for matters under the new jurisdiction. The draft bench book will be available for public comment until 27 December 2013, in time for a final version to be released when the jurisdiction commences on 1 January 2014.

OH&S

Election promises/proposed changes:

National scheme and Safe Work Australia to remain.
Informal indications that Western Australia may only adopt certain parts of the harmonised law.
Victoria silent on adoption of model laws.

Progress in the first 100 days of government: No formal steps have been made by Western Australia or Victoria to adopts the model laws, however on 21 November 2013 Senator Abetz told Senate Estimates in the context of Work Health and Safety laws that the Government would:

"devote actual days to repealing legislation and trying to get off the books those matters we believe overregulate our society and stifle the economic activity of business".

We expect that the Government's intentions will be clarified in the near future.

Agreement-making

Election promises/proposed changes:

The Fair Work Commission will need to be satisfied that parties have "considered and discussed ways to improve productivity" before approval of enterprise agreements.
BOOT Test: to take account of "non-monetary benefits".

Progress in the first 100 days of government: No indication as to when any changes will be introduced.

Greenfields agreements

Election promises/proposed changes:

Three month bargaining deadline, arbitration to follow.
The Fair Work Commission must arbitrate "fair working conditions that are consistent with prevailing industry standards".
Employer only required to negotiate with the union with majority membership.
Good faith bargaining obligations to apply.

Progress in the first 100 days of government: Legislative changes are not expected until autumn next year.

On 15 November 2013 Senator Abetz reaffirmed the Coalition's intention with respect to Greenfields agreements, noting that:

"the current model for greenfield agreements delays construction projects, is bad for jobs, bad for businesses and is bad for the Australian economy...we will fix this problem by providing that if negotiations for a greenfield agreement have not been completed within three months then a business will be able to take their proposed agreement to the Fair Work Commission for approval."

Industrial action

Election promises/proposed changes:

The Fair Work Commission will need to be satisfied that claims are "fair and reasonable" and not "exorbitant or excessive" before authorising ballot order.
Ballot order only available once bargaining has commenced ( overturning JJ Richards v TWU) and genuine and meaningful talks have occurred.

Progress in the first 100 days of government: Legislative changes are not expected until late next year.

Individual Flexibility Arrangements (IFAs)

Election promises/proposed changes:

No statutory contracts will be reintroduced (AWAs).
Ability to restrict the scope of operation of IFAs through enterprise bargaining to be removed.
Notice period for termination of IFAs to be extended from 28 days to 90 days.
Notification and genuine agreement obligations to remain.
Defence of belief on reasonable grounds.

Progress in the first 100 days of government: Legislative changes are not expected until late next year.

Unfair dismissal

Election promises/proposed changes: Will give the Fair Work Commission power to dismiss proceedings if parties do not attend proceedings/conciliation.

Progress in the first 100 days of government: No update as to when any changes will be made.

Independent contractors

Election promises/proposed changes: Extension of unfair contracts regime in the Competition and Consumer Law Act 2010 to small business.

Progress in the first 100 days of government: No update as to when any changes will be made.

The Government had appointed Bruce Billson as the Minster for Small Business. This is the only portfolio Mr Billson is responsible for and will ensure a stronger focus on small businesses and independent contractors by the Government.

Adverse action

Election promises/proposed changes:

Will clarify that the subjective intention of the decision maker is to be the central consideration (ie. converting the Barclay High Court decision into statutory law).
Australian Law Reform Commission Inquiry into the reverse onus of proof (to be across all legislation).

Progress in the first 100 days of government: No indication as to when any changes will be introduced.

The Fair Work Commission has meanwhile issued a draft bench book for general protections matters and is seeking public comments by 27 December 2013.

Right of entry

Election promises/proposed changes: Will be able to enter for discussion purposes if:

Union is covered by the enterprise agreement; or
bargaining representative seeking to make an agreement; and
evidence that members have requested their presence.

For award-workplaces or unions with no agreement coverage:

Union has to demonstrate it has, or previously had, representative role; and
evidence that members have requested their presence.

Right to enter to investigate breaches, OH&S, TCF remain. Right to enter lunch room to be repealed.

Progress in the first 100 days of government: Legislative changes are not expected until autumn next year.

On November 2015 Senator Abetz reaffirmed the Coalition's stance that:

"We will stop the lunchroom invasion and we will stop the joy-rides for union bosses to offshore sites at company expense."

Fair Work Commission

Election promises/proposed changes: Will give "active consideration" to creating an independent appeal jurisdiction.

It's difficult to see this being implemented.

Progress in the first 100 days of government: On 14 June 2013 Senator Abetz said during an industrial relations debate that:

"the Coalition is not married to the idea, we're not even engaged to the idea, but we are dating the idea."

The Government has given employers and unions until 13 December 2013 to put forward their views on the current appeal mechanism, including how it could be improved and any possible alternative processes. At Senate Estimates, Senator Abetz has stated that he will be looking at these views over the Christmas break with the aim of considering what might be proposed in the New Year.

Although it is still difficult to see this being implemented it does appear to be gaining some momentum.

Australian Building & Construction Commission

Election promises/proposed changes:

Re-establish the ABCC in its original form within the first parliamentary sitting week.
Current Fair Work Building and Construction officials will be required to reapply for their positions.
Australian Law Reform Commission Inquiry into the right to silence (to be across all legislation).

Progress in the first 100 days of government: The Building and Construction Industry (Improving Productivity) Bill 2013 and the Building Construction Industry (Consequential and Transitional Provisions) Bill 2013 seeking to re-establish the ABCC were introduced into Parliament on 14 November 2013.

Key changes include:

increasing the ABCC jurisdiction by extending the definition of "building work" and the ABCC's reach to some offshore construction;
introducing a prohibition against unlawful picket action; and
significant penalties for contravening prohibitions against unlawful industrial action (maximum penalties of $34,000 for individuals and $170,000 for body corporates, including unions).

The Construction Code and Guidelines

Election promises/proposed changes:

Overhaul of the Federal Construction Code and Guidelines.
Likely to be modelled on the Victorian Code and Guidelines / Previous Federal guidelines.
Will seek to develop nationally consistent procurement guidelines with the States.

Progress in the first 100 days of government: No indication as to when any changes to the Code and Guidelines will be introduced. This will not require legislative change.

Road Safety Remuneration Tribunal

Election promises/proposed changes: Likely to be abolished

Progress in the first 100 days of government: The Government has commission an independent review into the Road Safety Remuneration Tribunal to determine whether it imposes onerous and unnecessary compliance burdens on employees.

The Government will seek submissions from a broad range of stakeholders and expects to complete the review in the first quarter of 2014.

Union regulation

Election promises/proposed changes: New union official duties and a new regulator (to sit within the Fair Work Ombudsman).

Progress in the first 100 days of government: On 14 November 2013 the Government introduced the Fair Work (Registered Organisations) Amendment Bill 2013. The bill proposes a number of changes to take effect early next year, including:

establishing an independent authority from 1 July 2014 to sit within the Fair Work Ombudsman to monitor and regulate registered organisations (ie. unions);
new investigations powers;
increased disclosure requirements of earnings of top union officers; and
increased penalties including criminal penalties for breaches of officers' duties (likely to mirror obligations of directors under the Corporations Act 2001 (Cth).

Employers should keep up to date with these proposed developments and their potential impact on company policies, procedures and the workplace generally. Please contact us if you want any further information or to discuss the impacts on your business.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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