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