Government announces workplace changes for a modern workforce

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Emphasising the importance of workplace relations policy in the lead-up to the September 14 federal election, the Government recently made a series of announcements about proposed legislative changes to promote family-friendly workplaces and address workplace bullying. In this In Brief, we examine these proposals and their potential implications for employers.

RIGHT TO REQUEST FLEXIBLE WORK ARRANGEMENTS

The Government plans to change the “right to request” provisions which form part of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act).

The changes would broaden the categories of workers who can make a request to their employer for flexible working arrangements, presently limited to parents of pre-school children or children under the age of 18 with a disability. Under the proposals, the additional groups of employees who could initiate flexible work requests would include:

  • employees with school-age children;
  • employees with a disability;
  • mature-age employees; and
  • employees experiencing family violence or employees providing personal care, support and assistance to a member of their immediate family/household because they are experiencing family violence.

The Government also intends to provide clearer guidance on what may constitute “reasonable business grounds” on which an employer can refuse a request for flexible working arrangements; and increase awareness of the right to request through an amendment to the Fair Work Information Statement which must be provided to all new employees.

The proposed expansion of the right to request to a wider range of employees would implement a recommendation of the 2012 Fair Work Act Review Panel.[1] However, the Government has decided not to implement, at this stage, another key recommendation of the Review Panel – that the right to request be given greater enforceability, by requiring an employer to hold a meeting to discuss an employee’s request (rather than simply rejecting the request outright).

The Fair Work Commission (FWC) also released a report recently on the operation of the right to request and related provisions of the FW Act, since they came into effect on 1 January 2010. The report indicated that, while around 5% of employers surveyed had received a request, in 91% of cases the employer agreed to the request.[2] The Government will no doubt use the report’s findings to support its campaign to increase access to and awareness of the right to request.

Parental leave

The Government has also proposed to amend the parental leave provisions of the NES. Currently, an employee is entitled to up to 12 months’ unpaid parental leave following the birth or adoption of a child (where the employee is the child’s primary carer); and after this period, the employee’s partner is entitled to up to 12 months’ unpaid leave. Immediately following the birth or adoption of the child, the parents may take up to 3 weeks’ leave concurrently.

The Government intends to expand upon these entitlements in the following ways:

  • enabling parents to take up to 8 weeks’ unpaid parental leave together, and allowing them to choose when they would like to take concurrent leave;
  • providing greater protections for pregnant employees, including the right to transfer to a safe job regardless of whether the employee has completed 12 months’ service with the employer (as is presently required);
  • providing that women who need to take unpaid special maternity leave prior to giving birth (e.g. due to a pregnancy-related illness) do not have that period of leave deducted from their 12 months’ unpaid parental leave entitlement.[3]

Consultation with employees over roster changes

Completing the package of family-friendly measures announced recently, the Government intends to change the FW Act provisions dealing with consultation requirements under modern awards and enterprise agreements so that they encompass consultation over roster changes.

At present, award consultation clauses and the model consultation clause for enterprise agreements require employers to consult with employees (and their representatives) about major workplace changes that will impact upon employees, such as restructuring and redundancy proposals. Parties to enterprise agreements can adopt the model consultation provision, or negotiate their own clause.

The proposed changes would require employers, “before making any decision to change rosters or working hours, to genuinely consult with affected employees about the impact of the changes on their family life”.[4]

It is unclear at this stage whether the Government proposes to make these new requirements applicable under all enterprise agreements, or whether parties could continue to negotiate their own consultation clauses (without any requirement to consult over roster changes).

In addition, it is not known whether the required consultation over roster changes would have to be carried out with employees on an individual or collective basis.

Workplace bullying

The Government has also announced its response to a House of Representatives Committee Report on Workplace Bullying,[5] indicating that it will introduce legislation implementing 19 of the Committee’s 23 recommendations. The proposals that the Government intends to pursue include:

  • adopting the following standard definition of bullying: “Bullying, harassment or victimisation means repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”[6] – however, bullying does not include reasonable management practices such as performance management conducted in a reasonable manner;
  • allowing workers to bring an alleged bullying complaint before the FWC, which would be required to list the matter for consideration within 14 days;
  • empowering the FWC to make orders, in cases where a person has been subjected to workplace bullying, that are appropriate to remedy or prevent such conduct from recurring – e.g. orders requiring the employer to do (or not do) certain things to resolve the bullying complaint and prevent further bullying;
  • imposing civil penalties of up to $33,000 for a failure to comply with an FWC order in a bullying complaint case;
  • enabling the FWC to refer a bullying complaint to a work health and safety (WHS) regulator in the relevant jurisdiction, for investigation and appropriate action under the regulator’s compliance and enforcement policy;
  • the development of materials for employers by Safe Work Australia, providing advice on preventing and responding to workplace bullying;
  • Safe Work Australia working with the states and territories to develop nationally accredited training for managers and health and safety representatives to assist them in managing bullying issues in the workplace.

Overall, the implementation of these proposals would see a major shift in the regulation of workplace bullying from federal, state and territory WHS laws to workplace relations law. However, the introduction for the first time of a general right of employees to bring a bullying claim may lead to a rush of claims. The President of the FWC has already indicated that the tribunal does not presently have the resources to handle this new jurisdiction.

Where to next?

The Government has signalled that it wants the new bullying laws in place by 1 July 2013. With legislation to be introduced into Parliament next month, it is possible that this timetable could be achieved.

The Government has so far provided very little detail on the family-friendly measures outlined earlier, and is now consulting with stakeholders on these proposals. It is possible that these proposed changes will form part of the Government’s foreshadowed second tranche of legislation implementing the 2012 Fair Work Act Review.

We will keep you informed of the changes in this area as they develop.


  [1] Australian Government, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation, June 2012, pp 95-99.

  [2] Bernadette O’Neill, General Manager’s Report into the Operation of the Provisions of the National Employment Standards relating to Requests for Flexible Working Arrangements and Extensions of Unpaid Parental Leave, 2009-2012, Fair Work Australia, November 2012, available here.

  [3] This last proposal was recommended by the Fair Work Act Review Panel: Australian Government, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation, June 2012, pp 94-95.

  [4] The Hon Bill Shorten MP, Minister for Employment and Workplace Relations, “Modern families central to Fair Work Act improvements”, 14 February 2013.

  [5] House of Representatives, Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, October 2012.

  [6] This reflects the definition of bullying in the Draft Code of Practice, Preventing and Responding to Workplace Bullying, currently being developed by Safe Work Australia. 


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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