Fairwork Changes Effective from 01 Jan 2014 – Be Ready!

The Fair Work Act 2009 sets out a number of requirements that business, including small business, needs to be aware of. There were numerous changes to the Fair Work Act in 2013 and there are more changes that are coming in to effect as of 01 January 2014. Read on to see what changes are coming… and be ready!

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The additional changes to the Fair Work Act that will come into effect from 1 January 2014 include:

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(1) Anti-bullying measures: Employees who reasonably believe they are being bullied at work will be able to apply to the Fair Work Commission for an order to stop the bullying.

A worker is bullied at work if an individual or a group of individuals repeatedly behaves unreasonably toward the worker, and the behaviour creates a risk to health and safety. The definition of ‘bullying’ is expressly stated not to apply to reasonable management action carried out in a reasonable manner.

Be aware that the definition of ‘worker’ is broader than ‘employee’ and includes contractors, outworkers, apprentices, trainees, work experience students and volunteers.

When the FWC receives an application for an order to stop bullying, it must be dealt with within 14 days. In considering whether an order should be made, the FWC must take into account any matters the FWC considers relevant, including the:

• outcomes of any investigation into the matter at a workplace level, whether undertaken by the workplace, or another person;
• procedures available to the worker to resolve grievances or disputes; and
• outcomes arising out of any procedure available to the worker to resolve grievances or disputes.
• If the FWC makes an order to stop bullying and that order is breached, civil penalty provisions will apply.

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(2) Right of entry rules: The changes will give the Fair Work Commission more power to deal with disputes and will require there to be agreement between the employer and the relevant permit-holder about where discussions with employees must be held.

These changes affect the rights and powers of officials of organisations who have entry permits to enter businesses. The amendment allows unions to hold meetings in employee lunch rooms, and requires employers to provide accommodation and transport for union permit holders exercising right of entry at work sites in remote areas. ?

Additionally, the FWC will now be able to deal with disputes about the frequency of union permit holders entering work premises to hold discussions with one or more employees. The FWC can deal with the dispute by way of arbitration and can make orders such as suspending or revoking an entry permit and imposing conditions on an entry permit.

The changes will mean that:

• interviews and discussions with employees must be held in an area that the business and permit holder agree to (lunch rooms can be used if no agreement can be reached);
• the FWC will be able to deal with disputes about the frequency of visits;
• the FWC will be able to deal with disputes about accommodation and transport arrangements, and ensure appropriate conduct by permit holders while they are receiving accommodation or
• being transported under the arrangements.

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(3) Consultation about rosters and hours of work: The standard consultation clause that must be included in awards and enterprise agreements will require employers to ‘genuinely consult’ with employees about changes to their regular roster and ordinary working hours.

Genuine consultation on changes to rosters and hours of work will now be mandatory.

Enterprise agreements, commencing after 1 January 2014, and modern awards, must now include a term requiring the employer to consult with employees about a change to their regular roster or ordinary hours of work. This is in addition to the current requirement that employers consult with employees about major workplace changes that are likely to have a significant effect on the employees.

All awards and agreements will have to include a term that requires employers to genuinely consult with their employees about changes to their regular roster and ordinary working hours. So, when employers want to change an employee’s regular roster or ordinary hours of work they will have to:

give information to employees about the changes,
invite employees to give their views about how the changes will affect/impact them, including the impact in relation to their family or caring responsibilities, and
consider the employees views about the impact of the change.
Agreements will also require employers to consult about any major change to a workplace that is likely to have a significant effect on the employees.

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(4) Protection of penalty rates:

The modern award objective in the Act will be amended to protect penalty rates. This will mean that the FWC, when making or changing a modern award, will have to take into account the need to provide additional pay for employees working:

• overtime,
• unsocial, irregular, or unpredictable hours,
• on weekends or public holidays shifts.