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Fair Work Act – Expansion of Employee Rights – Passed.


Employers need to be aware that the recent amendments to the Fair Work Act expand the entitlements of employees and unions – arguably at the expense of employers. Business industry associations including the Chamber of Commerce are disappointed that the House of Representatives has pushed through amendments to the Fair Work Act that will further add to the already substantial burden that the Act places on small and medium businesses.

Chamber of Commerce Queensland, General Manager of Advocacy, Nick Behrens, went so far as to say that “the balance of the Fair Work Act has swung dramatically and too far in favour of employees in recent years and the amendments passed only increase the imbalance.“

Read on to see the changes and how you can prepare for and manage them in your workplace.

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Fair Work Act – Expansion of Employee Rights – PASSED.

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The House of Representatives has passed amendments to the Fair Work Act that the business community has been very concerned about – and with good reason! In today’s post we look at what the amendments are, what they mean to SMEs and how businesses can prepare for and manage them.

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– The Amendments –

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Expanded Parental Rights including:

  • Any period of unpaid special maternity leave taken by an eligible employee does not reduce that employee’s entitlement to unpaid parental leave;
  • Increase to the maximum period of concurrent unpaid parental leave from three to eight weeks and allow that leave to be taken in separate periods within the first 12 months of the birth or adoption of a child;
  • Enabling of pregnant employees to transfer to a “safe job” regardless of their period of service.

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Expanded Employee Rights including:

  • Expansion of access to the right to request flexible working arrangements to a broader class of employees;
  • A mandatory requirement for employers to consult with employees about changes to regular rosters or ordinary work hours;
  • Require the Fair Work Commission (FWC) to take into account the need to provide additional remuneration for certain employees;
  • The creation of a national workplace bullying jurisdiction.

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Expanded Union Rights including:

  • Further expansion of union entry rights.

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– Specifics of the Amendments… and How to Manage Them in Your Business –

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Now let’s look at three of the specific changes and how business can prepare for and manage them.

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1) New consultation requirements…

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In essence the changes involve:

  • requiring employers to genuinely consult employees about every/any change to an employee’s regular roster or ordinary hours of work – and consider the impact of the change in relation to the
  • employee, their family and any caring arrangements.
  • ensuring all enterprise agreements include a consultation clause which requires the employer to consult with employees and their representatives about major workplace changes that are likely to have a significant effect on the employees.

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Curiously, the requirement for an employer to consult with an employee regarding changes to an employee’s ordinary hours of work is already covered by a clause in all modern awards so this amendment which introduces further consultation requirements appears to be unnecessary but none-the-less an advantage for employees that increases the regulatory burden on employers.

The increased legislation around this is likely to:

  • directly or indirectly lead to an increase in disputes.
  • be an increased burden for employers with practical implications for engaging with the workforce in order to avoid disputes.

The best way to deal with this increased requirement for communicating roster and working hour changes is to ensure your managers maintain effective communication and consultation with all employees in any circumstance where changes are being suggested or implemented – and that all interactions are recorded in a hard copy manner.

With regards to making this process compliant with the new Fair Work stipulations:

  • ensure any changes to an employees roster or working hours are given to the employee, where ever possible, in time for them to make an informed decision about whether they agree to those
  • changes in work rosters or hours.
  • if changes to rosters/ work hours needs to be made urgently give the employee a choice as to whether to agree or disagree to the changes – and if there is a disagreement document reasons for the employee not being able to work the changed roster/hours.
  • keep records of employee responses to changes in rosters or work hours. If an employee agrees to changes to roster or work hours a record MUST be keep a record of it. Do not rely on verbal agreements.

With regards to making this an easy process to administer and less of a burden on your management staff:

  • make it easy for your managers to communicate changes to rosters/hours to employees.
  • make it easy for employees to either accept or refute changes.
  • make it easy for records to be kept in relation to all communication regarding changes to rosters/hours.
  • make it easy to find extra staff to work any changes to rosters/hours that are not agreed to by staff.

So how do you “make it easy” to do all of the above? The best way is through streamlining and automation of these tasks with workforce management software. Check out the easyEMPLOYER Workforce Management Solution and see how easy it is to get control of all of your staff admin processes!

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2) Flexible working arrangements…

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Currently, parents have a right to request flexible work arrangements until their child reaches school age.

The changes to the Fair Work have extended access to the right to request flexible working arrangements to include situations where:

  • the employee is a carer (within the meaning of the Carer Recognition Act 2010);
  • the employee has a disability;
  • the employee is 55 or older;
  • the employee is experiencing violence from a family member; and
  • the employee provides care or support to an immediate family or household member, who requires care or support because the member is experiencing violence from another family member.

These changes will create an increased burden on employers to respond to / assess requests for flexible working arrangements. If businesses do not handle these requests in the strict and correct manner as per the Fair Work Act they will be at risk for disputes.

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Businesses need to establish new procedures in line with the Fair Work Act requirements for reviewing requests for flexible working arrangements. Include statements or circumstances that describe and outline genuine operational reasons for not accommodating such requests – so that when the new stricter rules apply you will readily comply with the increased need for showing these reasons for refusing flexible working arrangements.

So what might constitute ‘reasonable business grounds’ for refusing a request for flexible working arrangements? The Bill provides the following provisions:

  • that the new working arrangements requested by the employee would be too costly for the employer;
  • that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; and
  • that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Use this guidance to help form your business policy around flexible working arrangements.

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3) Parental leave & accommodations…

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In essence the changes are:

  • extends the existing entitlement for a pregnant employee to transfer to a safe job regardless of whether she has, or will have, an entitlement to unpaid parental leave. Currently, an employee is
  • only entitled to transfer to a safe job if they are entitled to unpaid parental leave.
  • amends the concurrent leave provisions of the FW Act to increase the maximum period of concurrent leave. Now unpaid parental leave provisions rise from three weeks to eight weeks.
  • allows parents to choose when to take concurrent leave, by enabling the eight weeks’ leave to be taken in separate periods (of at least two weeks, or a shorter period if agreed by the employer) at any time within the first 12 months of the birth or adoption of a child.

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The major effect this will have is with regards to the increased provisions for pregnant employees:

  • the entitlement to be transferred to an appropriate safe job applies to any pregnant employee, regardless of the period of service that the employee has worked. For instance, an employee with only two week’s service with the employer who is pregnant would be entitled to a safe job.

Employers in industries where the nature of the work may not be safe for pregnant employees will need to devise a plan to manage any such changes… including looking at unpaid leave options which can in some instances be used when no safe job can be found.