A number of amendments to the Fair Work Act came into effect on 27 November 2015. These amendments are those from the Federal Government’s Fair Work Amendment Bill that was passed by the Senate and the House of Representatives. Following passage of the Bill, employers will be able to take proposed Greenfields Enterprise Agreements to the Fair Work Commission (FWC) for approval if a deal with the union has not been reached within six months. A Greenfields Agreement is an agreement reached between an employer and union before any employees are employed in the enterprise or on the project to be covered by the agreement. A second amendment passed by both houses is that unions will not be able to take protected industrial action before bargaining commences (overturning the effect of the JJ Richards decision).

The Government has introduced the Fair Work Amendment (Remaining 2014 Measures) Bill which contains matters that were removed from the original bill. Those proposed amendments include:

  • clarifying that, at the end of employment, annual leave loading is paid on outstanding annual leave only if the enterprise agreement or award says it is to be paid. At present the National Employment Standards in the Fair Work Act say that an employee must be paid what he or she would have been paid (including annual leave loading) if he or she had taken the leave. The proposal (if passed) will allow an enterprise agreement or award to say that annual leave loading is not payable on accrued but untaken annual leave payments on termination of employment or that accrued and untaken annual leave will be paid at the employee’s base rate of pay;
  • clarifying that leave will not accrue while a worker is already away from work and receiving workers’ compensation. At present in NSW, an employee accrues annual leave while receiving workers compensation payments;
  • amending individual flexibility arrangement (IFA) provisions in awards and enterprise agreements by requiring an employee to state in writing why he or she will be better off and further that an employee and employer can terminate an IFA at any time by agreement or by giving the other party 13 weeks notice of their intention to terminate the IFA;
  • amending transfer of business provisions to fix an unintended consequence where an employee wants to voluntarily change jobs. The proposed amendment seeks to make it clear that when employees, on their own initiative, seek to transfer to an associated entity of their current employer they will be subject to the terms and conditions of employment provided by the new employer and not those of their former employer as is presently the case; and
  • Repealing right of entry provisions inserted in the Act by the previous government that required an employer or occupier to facilitate transport and accommodation arrangements for permit holders exercising entry rights at work sites in remote locations; that related to the default location of interviews and discussions by reinstating pre-existing rules; and by expanding the FWCs capacity to deal with disputes about the frequency of visits to premises for discussion purposes.

The Remaining Measures Bill will be debated when parliament resumes in the new year.

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