Fair Work Amendment Act 2013 (Cth)

Fair Work Amendment Act 2013 No. 73, 2013 An Act to amend the law relating to workplace relations, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Family‑friendly measures Part 1—Special maternity leave Fair Work Act 2009 Part 2—Parental leave Fair Work Act 2009 Part 3—Right to request flexible working arrangements Fair Work Act 2009 Part 4—Consultation about changes to rosters or working hours Fair Work Act 2009 Part 5—Transfer to a safe job Fair Work Act 2009 Schedule 2—Modern awards objective Fair Work Act 2009 Schedule 3—Anti‑bullying measure Fair Work Act 2009 Schedule 3A—Conferences Fair Work Act 2009 Schedule 4—Right of entry Fair Work Act 2009 Schedule 4A—Consent arbitration for general protections and unlawful termination Part 1—General protections Fair Work Act 2009 Part 2—Unlawful termination Fair Work Act 2009 Schedule 5—The FWC Fair Work Act 2009 Schedule 6—Technical amendments Fair Work Act 2009 Fair Work Amendment Act 2012 Schedule 6A—Registered organisations Fair Work (Registered Organisations) Amendment Act 2012 Schedule 7—Application and transitional provisions Fair Work Act 2009 Fair Work Amendment Act 2013 No. 73, 2013 An Act to amend the law relating to workplace relations, and for related purposes [Assented to 28 June 2013] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Fair Work Amendment Act 2013. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 28 June 2013 2. Schedule 1, Parts 1 to 3 A single day to be fixed by Proclamation. 1 July 2013 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedule 1, Part 4 1 January 2014. 1 January 2014 4. Schedule 1, Part 5 At the same time as the provision(s) covered by table item 2. 1 July 2013 5. Schedule 2 1 January 2014. 1 January 2014 6. Schedule 3 1 January 2014. 1 January 2014 6A. Schedule 3A At the same time as the provision(s) covered by table item 2. 1 July 2013 7. Schedule 4 1 January 2014. 1 January 2014 7A. Schedule 4A 1 January 2014. 1 January 2014 8. Schedule 5, item 1 Immediately after the commencement of the Fair Work Amendment (Transfer of Business) Act 2012. 5 December 2012 9. Schedule 5, item 2 Immediately after the commencement of Schedule 1 to the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012. 1 July 2012 10. Schedule 5, items 3 and 4 At the same time as the provision(s) covered by table item 2. 1 July 2013 11. Schedule 6, item 1 Immediately after the commencement of Schedule 1 to the Fair Work Amendment Act 2012. 1 January 2014 12. Schedule 6, items 2 to 4 The day this Act receives the Royal Assent. 28 June 2013 13. Schedule 6, item 5 Immediately after the commencement of Schedule 2 to the Fair Work Amendment Act 2012. 1 July 2013 14. Schedule 6, items 6 to 8 The day this Act receives the Royal Assent. 28 June 2013 15. Schedule 6, items 9 and 10 Immediately after the commencement of Schedule 8 to the Fair Work Amendment Act 2012. 1 January 2013 16. Schedule 6, items 11 to 13 Immediately after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012. 1 January 2013 17. Schedule 6, item 14 Immediately after the commencement of item 1364 of Schedule 9 to the Fair Work Amendment Act 2012. 1 January 2013 17A. Schedule 6A Immediately before the commencement of Part 2 of Schedule 1 to the Fair Work (Registered Organisations) Amendment Act 2012. 29 June 2013 18. Schedule 7 The day this Act receives the Royal Assent. 28 June 2013 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Family‑friendly measures Part 1—Special maternity leave Fair Work Act 2009 1 Section 70 (note 1) Omit "Note 1", substitute "Note". 2 Section 70 (note 2) Repeal the note. 3 Paragraph 75(2)(c) Omit ";", substitute ".". 4 Paragraph 75(2)(d) Repeal the paragraph. 5 Paragraph 76(6)(a) Omit "and unpaid special maternity leave". 6 Paragraph 76(6)(b) Omit "or unpaid special maternity leave". 7 Subsection 80(1) (note) Omit "Note", substitute "Note 1". 8 At the end of subsection 80(1) Add: Note 2: If a female employee has an entitlement to paid personal/carer's leave (see section 96), she may take that leave instead of taking unpaid special maternity leave under this section. 9 Subsection 80(7) Repeal the subsection (not including the note). 10 Section 97 (note) Omit "Note", substitute "Note 1". 11 At the end of section 97 Add: Note 2: If a female employee has an entitlement to paid personal/carer's leave, she may take that leave instead of taking unpaid special maternity leave under section 80. Part 2—Parental leave Fair Work Act 2009 12 Section 12 Insert: concurrent leave: see subsection 72(5). 13 Paragraphs 72(5)(a), (b) and (c) Repeal the paragraphs, substitute: (a) the concurrent leave must not be longer than 8 weeks in total; (b) the concurrent leave may be taken in separate periods, but, unless the employer agrees, each period must not be shorter than 2 weeks; (c) unless the employer agrees, the concurrent leave must not start before: (i) if the leave is birth‑related leave—the date of birth of the child; or (ii) if the leave is adoption‑related leave—the day of placement of the child. 14 Subsection 74(2) Repeal the subsection, substitute: (2) The employee must give the notice to the employer: (a) at least: (i) 10 weeks before starting the leave, unless subparagraph (ii) applies; or (ii) if the leave is to be taken in separate periods of concurrent leave (see paragraph 72(5)(b)) and the leave is not the first of those periods of concurrent leave—4 weeks before starting the period of concurrent leave; or (b) if that is not practicable—as soon as practicable (which may be a time after the leave has started). 15 After subsection 74(4) Insert: (4A) Subsection (4) does not apply to a notice for a period of concurrent leave referred to in subparagraph (2)(a)(ii). Part 3—Right to request flexible working arrangements Fair Work Act 2009 16 Section 12 (definition of school age) Omit "start attending", substitute "attend". 17 Subsection 65(1) Repeal the subsection, substitute: Employee may request change in working arrangements (1) If: (a) any of the circumstances referred to in subsection (1A) apply to an employee; and (b) the employee would like to change his or her working arrangements because of those circumstances; then the employee may request the employer for a change in working arrangements relating to those circumstances. Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work. (1A) The following are the circumstances: (a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger; (b) the employee is a carer (within the meaning of the Carer Recognition Act 2010); (c) the employee has a disability; (d) the employee is 55 or older; (e) the employee is experiencing violence from a member of the employee's family; (f) the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family. (1B) To avoid doubt, and without limiting subsection (1), an employee who: (a) is a parent, or has responsibility for the care, of a child; and (b) is returning to work after taking leave in relation to the birth or adoption of the child; may request to work part‑time to assist the employee to care for the child. 18 After subsection 65(5) Insert: (5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following: (a) that the new working arrangements requested by the employee would be too costly for the employer; (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee; (c) 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; (d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; (e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service. Part 4—Consultation about changes to rosters or working hours Fair Work Act 2009 19 After section 145 Insert: 145A Consultation about changes to rosters or hours of work (1) Without limiting paragraph 139(1)(j), a modern award must include a term that: (a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and (b) allows for the representation of those employees for the purposes of that consultation. (2) The term must require the employer: (a) to provide information to the employees about the change; and (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and (c) to consider any views about the impact of the change that are given by the employees. 20 Paragraph 205(1)(a) Repeal the paragraph, substitute: (a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about: (i) a major workplace change that is likely to have a significant effect on the employees; or (ii) a change to their regular roster or ordinary hours of work; and 21 After subsection 205(1) Insert: (1A) For a change to the employees' regular roster or ordinary hours of work, the term must require the employer: (a) to provide information to the employees about the change; and (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and (c) to consider any views given by the employees about the impact of the change. Part 5—Transfer to a safe job Fair Work Act 2009 22 Section 12 (definition of appropriate safe job) Omit "subsection 81(4)", substitute "subsection 81(3)". 23 Section 12 (definition of paid no safe job leave) Omit "paragraph 81(3)(b)", substitute "section 81A". 24 Section 12 Insert: risk period: see subsections 81(1) and (5). unpaid no safe job leave means unpaid no safe job leave to which a national system employee is entitled under section 82A. 25 Subsections 67(1) and (2) After "unpaid pre‑adoption leave", insert "or unpaid no safe job leave". 26 Subsection 71(3) (note 2) Repeal the note, substitute: Note 2: If it is inadvisable for the employee to continue in her present position, she may be entitled: (a) to be transferred to an appropriate safe job under section 81; or (b) to paid no safe job leave under section 81A; or (c) to unpaid no safe job leave under section 82A. 27 Subparagraph 73(2)(c)(ii) Repeal the subparagraph, substitute: (ii) the employee has not complied with the notice and evidence requirements of section 74 for taking unpaid parental leave. 28 Subsection 73(2) (note) Repeal the note, substitute: Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and the employee has complied with the notice and evidence requirements of section 74, then the employee is entitled to be transferred to a safe job (see section 81) or to paid no safe job leave (see section 81A). 29 Section 81 Repeal the section, substitute: 81 Transfer to a safe job (1) This section applies to a pregnant employee if she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of: (a) illness, or risks, arising out of her pregnancy; or (b) hazards connected with that position. Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988. (2) If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee's terms and conditions of employment. Note: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A. (3) An appropriate safe job is a safe job that has: (a) the same ordinary hours of work as the employee's present position; or (b) a different number of ordinary hours agreed to by the employee. (4) If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee's full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period. (5) If the employee's pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends. (6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate. 81A Paid no safe job leave (1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is entitled to unpaid parental leave; and (c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave; then the employee is entitled to paid no safe job leave for the risk period. (2) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the risk period. 30 After section 82 Insert: 82A Unpaid no safe job leave (1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is not entitled to unpaid parental leave; and (c) if required by the employer—the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy; then the employee is entitled to unpaid no safe job leave for the risk period. (2) Without limiting subsection (1), an employer may require the evidence referred to in paragraph (1)(c) to be a medical certificate. Schedule 2—Modern awards objective Fair Work Act 2009 1 After paragraph 134(1)(d) Insert: (da) the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and Schedule 3—Anti‑bullying measure Fair Work Act 2009 1 After subsection 9(5A) Insert: (5B) Part 6‑4B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. 2 Section 12 Insert: bullied at work: see subsection 789FD(1). constitutionally‑covered business: see subsection 789FD(3). worker: (a) in Part 6‑4B—see subsection 789FC(2); and (b) otherwise—has its ordinary meaning. 3 Subsection 539(2) (at the end of the table) Add: Part 6‑4B—Workers bullied at work 38 789FG (a) a person affected by the contravention; (a) the Federal Court; 60 penalty units (b) an industrial association; (b) the Federal Magistrates Court; (c) an inspector (c) an eligible State or Territory court 4 At the end of subsection 576(1) Add: ; (q) workers bullied at work (Part 6‑4B). 5 At the end of subsection 675(2) Add: ; (j) an order under Part 6‑4B (which deals with workers bullied at work). 6 After Part 6‑4A Insert: Part 6‑4B—Workers bullied at work Division 1—Introduction 789FA Guide to this Part This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. 789FB Meanings of employee and employer In this Part, employee and employer have their ordinary meanings. Division 2—Stopping workers being bullied at work 789FC Application for an FWC order to stop bullying (1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF. (2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force. Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. (3) The application must be accompanied by any fee prescribed by the regulations. (4) The regulations may prescribe: (a) a fee for making an application to the FWC under this section; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. 789FD When is a worker bullied at work? (1) A worker is bullied at work if: (a) while the worker is at work in a constitutionally‑covered business: (i) an individual; or (ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (b) that behaviour creates a risk to health and safety. (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. (3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either: (a) the person is: (i) a constitutional corporation; or (ii) the Commonwealth; or (iii) a Commonwealth authority; or (iv) a body corporate incorporated in a Territory; or (b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally‑covered business. 789FE FWC to deal with applications promptly (1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made. Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593. (2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to: (a) Australia's defence; or (b) Australia's national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police. Note: For another power of the FWC to dismiss applications under section 789FC, see section 587. 789FF FWC may make orders to stop bullying (1) If: (a) a worker has made an application under section 789FC; and (b) the FWC is satisfied that: (i) the worker has been bullied at work by an individual or a group of individuals; and (ii) there is a risk that the worker will continue to be bullied at work by the individual or group; then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. (2) In considering the terms of an order, the FWC must take into account: (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and (d) any matters that the FWC considers relevant. 789FG Contravening an order to stop bullying A person to whom an order under section 789FF applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4‑1). 789FH Actions under work health and safety laws permitted Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application under section 789FC. Note: Ordinarily, if a worker makes an application under section 789FC for an FWC order to stop the worker from being bullied at work, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the bullying. This section removes that prohibition. 789FI This Part is not to prejudice Australia's defence, national security etc. Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to: (a) Australia's defence; or (b) Australia's national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police. 789FJ Declarations by the Chief of the Defence Force (1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. 789FK Declarations by the Director‑General of Security (1) Without limiting section 789FI, the Director‑General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director‑General. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. 789FL Declarations by the Director‑General of ASIS (1) Without limiting section 789FI, the Director‑General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director‑General. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. Schedule 3A—Conferences Fair Work Act 2009 1 At the end of section 592 Add: (4) At a conference, the FWC may: (a) mediate or conciliate; or (b) make a recommendation or express an opinion. (5) Subsection (4) does not limit what the FWC may do at a conference. 2 Subsection 595(5) Omit "any of the powers referred to in subsection (2) or (3)", substitute "the power referred to in subsection (3)". Schedule 4—Right of entry Fair Work Act 2009 1 Section 12 Insert: accommodation arrangement: see subsections 521A(1) and (2). transport arrangement: see subsections 521B(1) and (2). 2 At the end of section 478 Add: Division 7 deals with accommodation and transport arrangements in remote areas. 3 At the end of subsection 481(1) Add: Note 3: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 4: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). 4 Subsection 483A(1) (note) Omit "Note", substitute "Note 1". 5 At the end of subsection 483A(1) Add: Note 2: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 3: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). 6 At the end of section 484 Add: Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section. 7 Section 492 Repeal the section, substitute: 492 Location of interviews and discussions (1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises. (2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions. (3) The permit holder may conduct the interview or hold the discussions in any room or area: (a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and (b) that is provided by the occupier for the purpose of taking meal or other breaks. Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused. Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502). 492A Route to location of interview and discussions (1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492. Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)). (2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen. (3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable. 8 Section 500 (note) Omit "Note", substitute "Note 1". 9 At the end of section 500 Add: Note