News & Events

Coalition Government set to implement “Policy to Improve the Fair Work Laws”

Submitted By Firm: Corrs Chambers Westgarth

Contact(s): John Tuck, John W.H. Denton

Author(s):

Jack de Flamingh, John Tuck & Anthony Forsyth

Date Published: 11/11/2013

Article Type: Legal Article

Share This:

Following its success in the 7 September federal election, the Liberal/National Coalition is now commencing to implement its industrial relations policy – with proposed legislation to re-establish the Australian Building and Construction Commission, and create a new body overseeing registered organisations likely to emerge fairly quickly.

In this In Brief we take another look at the Coalition’s policy,[1] highlighting the new Government’s key priorities for workplace reform, intended timetable, and prospects of implementation (given the composition of the Senate both before and after 30 June 2014).

In May this year, the Coalition outlined a two-stage reform process:

  1. Minimal changes to the Fair Work Act 2009 (Cth) (FW Act), as set out in the Coalition’s “Policy to Improve the Fair Work Laws”, which it stated would be legislated within three months of being elected to office.
  2. Further changes as recommended by a Productivity Commission review of the FW Act, to be carried out during the Coalition’s first term of government – with those proposals forming part of the policy the Coalition would take to the next election.

The main changes outlined in the Coalition’s industrial relations policy are as follows:

 

Current provisions in FW Act and related legislation

Proposed changes set out in Coalition Policy

Protected industrial action:

  • available early in negotiation of agreements (“strike first, talk later”)
  • claims limited only by rules on permitted, mandatory and unlawful terms in agreements

New limits on protected action:

  • must be preceded by genuine and meaningful talks
  • only in support of sensible and realistic claims

Enterprise agreements aimed at improving productivity (but not mandated)

Productivity issues must be considered in agreement negotiations

Greenfields agreements:

  • must be negotiated with unions
  • therefore unless the agreement of the unions is obtained they have a power akin to a veto over important resources/infastructure projects that require secured terms and conditions of employment

Greenfields deals:

  • subject to good faith bargaining rules
  • negotiations must be concluded within 3 months
  • after that, employer can request the Fair Work Commission (FWC) approve the proposed agreement, provided it is consistent with prevailing industry standards

Individual flexibility arrangements (IFAs):

  • available under awards and agreements
  • limited to 5 specific issues, or terms specified in enterprise agreement
  • employer concerns that unions prevent genuine flexibility through IFAs

Easier access to IFAs:

  • removing restrictions on employment conditions that can be subject of IFAs
  • termination by either party on 13 weeks’ notice (currently 4 weeks)

Union right of entry for purposes of investigating breaches of workplace or safety laws, or to hold meetings with members:

  • union needs members, or coverage rights over employees, in workplace

New restrictions on union right of entry, for example members must have requested the union’s presence and the union must have either:

  • agreement coverage or bargaining representative status; or
  • previous history of representation at workplace

Replaced Australian Building and Construction Commission (ABCC) with the Fair Work Building Industry Inspectorate

Re-establish ABCC with full investigative powers, and revisit federal Building Code 2013 and Supporting Guidelines to ensure consistency with state building codes[2]

Established Road Safety Remuneration Tribunal (RSRT) to set “safe rates” for employees and owner-drivers

Review the RSRT to determine if there is a justification for a specialist regulator

New anti-bullying jurisdiction of FWC commencing on 1 January 2014[3]

Require workers to seek assistance from independent agency (e.g. safety regulator) before lodging a bullying claim with the FWC

Expand jurisdiction to include conduct of union officials towards workers and employers

In late July, the Coalition released another policy document, its plan for “Better Transparency and Accountability of Registered Organisations”. This indicated that legislation would be introduced in the first sitting week of Parliament following the election, to establish a Registered Organisations Commission that will ensure compliance with the laws regulating unions and employer organisations.

During the election campaign, the Coalition announced details of its Paid Parental Leave (PPL) Policy. Scheduled to commence on 1 July 2015, the proposed PPL scheme will provide mothers with 26 weeks’ PPL following the birth of a child, at their actual wage (subject to a cap of $150,000 per annum). This is a substantial increase on the minimum entitlements under the former Labor Government’s PPL scheme (i.e. 18 weeks’ PPL at the minimum wage).

Issues and Questions about Implementation of the Coalition’s Policy

There is some doubt as to whether the Coalition will be able to implement the measures proposed in its Policy to Improve the Fair Work Laws by its target date of mid-December 2013.

To begin with, the new Government has indicated that Parliament will not re-convene until late October or early November. When that occurs, bills to repeal the carbon and mining taxes and implement the Coalition’s border security policy are likely to take precedence over the IR changes.

The Coalition must then get its legislative proposals through the Senate, where it will require support from Labor and the Greens until 30 June 2014. That support would not be forthcoming in respect of the Coalition’s top legislative priorities: restoring the ABCC and cracking down on the so-called “dodgy union officials”.

Another question is whether the Coalition will limit its first amending legislation to the proposals in the Policy to Improve the Fair Work Laws. There is a good chance that other amendments to the FW Act may be added to this initial bill, as the Government will be under strong pressure from employer groups to address their concerns about the current IR framework. This could see the Coalition bring forward changes on issues such as award penalty rates, limits on agreement content, and restricting access to unfair dismissal and general protections claims, rather than awaiting the outcome of the Productivity Commission review.

Looking further ahead, the composition of the Senate will change from 1 July 2014. Assuming the support of sitting DLP Senator John Madigan, on present predictions it looks like the Coalition will need support from five of the six newly-elected Senators from the Palmer United Party, Liberal Democratic Party, Australian Sports Party, Motor Enthusiast Party and Family First in order to pass legislation.[4] While the position of some of these minor parties on industrial relations is not known, others are strongly opposed to workplace regulation.[5] Therefore, the new Government has good prospects of obtaining support for more far-reaching workplace reforms from 1 July next year


[1] See our earlier In Brief here.

[2] During the election campaign the Coalition highlighted its commitment to re-establish the ABCC, by publishing the report of a working party of Liberal MPs which examined the feasibility of implementing the policy as a matter of priority: Mark Skulley, “ABCC back in 100 days, says Coalition”, Australian Financial Review, 3 September 2013.

[3] See our Workplace bullying Thinking conversation.

[4] See the ABC's analysis here.

[5] The Liberal Democratic Party is strongly opposed to labour market regulation, including the minimum wage which it describes as “the most pernicious feature of industrial relations law”, see here. Similarly, Family First is “committed to removing the barriers to entry to getting a job or working more hours” and addressing “the tragedy of workplace regulation”, see here. The Palmer United Party is vague on industrial relations, but does refer to “encouraging workplace reform … [by] breaking down centralised controls that have held back productivity and sustainable real wage growth”, see here.

Find an Employment Lawyer

In all 50 U.S. states, every Canadian province, and over 135 countries. View or print a complete ELA member list by clicking here.

Find an Immigration Lawyer

Facilitate employee transfers around the globe. View or print a complete ELA member list by clicking here.

International Background Checks Summaries

Your free resource summarizing the requirements for pre-employment checks around the world.

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel  

Loading...