Abstract
2014 was a year of considerable legislative activity with the introduction of six industrial relations Bills into Parliament. However, the Coalition Government failed to secure the passage of a single piece of industrial legislation. This article focuses on the most significant of these reforms, the Fair Work Amendment Bill 2014, which is designed to facilitate the making of greenfields agreements and to increase the take-up rate of individual flexibility agreements. At the same time, the Bill proposes to constrain the rights of unions to enter workplaces. As an addendum to these measures, a second Bill to amend the Fair Work Act was introduced late in the year. It aims to encourage the inclusion of productivity measures in enterprise bargaining negotiations. The article also considers legislative activity in the building and construction sector and the delayed implementation of new reporting requirements under the Workplace Gender Equality Act 2012. At the state level, the article briefly reviews Tasmanian legislation to protect businesses from the activities of protesters, developments in the regulation of work health and safety in Queensland and Western Australia and a new code of practice for the building and construction sector in Victoria.
Keywords
Introduction
In 2014, the Coalition Government sought to pass no fewer than six industrial relations Bills into law, but failed to secure their passage through the Senate. Opposition to the Government’s legislative agenda was unsurprising in the first half of the year when the Senate was controlled by Labor and the Greens. Greater legislative success was envisaged from July when control of the Senate shifted to the minor parties and independents. The Government’s failure to convince the cross-benchers of the merits of its industrial legislation in the latter half of the year means that it will need to consider significant compromises to ensure that at least some of its proposals become law in 2015.
The first two of the six Bills, the Building and Construction Industry (Improving Productivity) Bill 2013 and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 (the BCI Bills), were introduced into the House of Representatives in November 2013 and remained stalled in the Senate from February 2014. These Bills aimed to reinstate measures to constrain union activity in the building and construction industry. The third Bill, the Fair Work (Registered Organisations) Amendment Bill 2014, proposed to tighten regulation of trade unions and employer associations and to create a new Registered Organisations Commission to enforce these rules. It replicated a 2013 Bill, which was defeated in the Senate in May 2014.
The fourth Bill, the Fair Entitlements Guarantee Amendment Bill 2014, proposed to introduce a 16-week cap on the Government-funded guarantee of employee entitlements in the event employees are made redundant due to the bankruptcy or liquidation of their employer. This cap had previously been in place under the Coalition Government’s General Employee Entitlements and Redundancy scheme, but had been removed by the Labor Government when it introduced the Fair Entitlements Guarantee Scheme in 2012.
This review largely focuses on the fifth Bill, the Fair Work Amendment Bill 2014, which proposes to implement key aspects of the Liberal/National Coalition’s industrial relations policy (Coalition, 2013), released in May 2013 prior to the Federal election in September. Relative to the ‘Work Choices’ and ‘Fair Work’ amendments of 2005 and 2009, respectively, these are modest reforms. The Government nevertheless found it difficult to secure passage of the Bill through the Senate. Unperturbed, in the final sitting days for the year, the Government introduced into the House of Representatives its sixth industrial relations Bill, the Fair Work Amendment (Bargaining Processes) Bill 2014. This Bill, which attempts to legislate for the parties to consider productivity measures during enterprise bargaining negotiations, will be briefly examined.
The article will also outline the amendments proposed by the BCI Bills and changes made by legislative instrument to the Workplace Gender Equality framework. At the state level, the discussion encompasses legislation to limit the impact of protests on Tasmanian workplaces; changes that have been made or proposed to work health and safety laws in Queensland and Western Australia; and the introduction of a new building and construction industry code in Victoria.
Fair Work Amendment Bill 2014
The Fair Work Amendment Bill 2014 is the third set of amendments to the Fair Work Act 2009 (Cth) (FW Act) arising from the 2012 post-implementation review of the legislation Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation (Review, 2012: discussed in McCrystal and Orchiston, 2013). This discussion examines the most substantial changes proposed by the Bill, which relate to greenfields agreements, individual flexibility agreements and union right of entry. It also explains amendments to employees’ minimum entitlements under the National Employment Standards and to the transfer of business rules.
Greenfields agreements
Greenfields agreements are enterprise agreements that are made under the FW Act between an employer in a new business and relevant unions before any employees have been engaged (FW Act, s 172). These types of agreements have a long legislative history, but became controversial in 2006 when amendments introduced by the Work Choices reforms permitted the employer in a new business to make an ‘agreement’ unilaterally (Workplace Relations (WR) Act, s 330). To reintroduce genuine agreement making, the FW Act limited the use of greenfields agreements to arrangements made between employers and the union or unions with majority coverage in the workplace.
The amendments proposed by the Bill again raise the prospect of an employer making an agreement unilaterally, although there are limited circumstances in which this is permitted to occur and the ‘agreement’ will be subject to scrutiny by the Fair Work Commission (FWC). The amendments have been introduced in response to a finding by the Fair Work Review Panel that the current arrangements allow relevant unions ‘to frustrate the making of an appropriate greenfields agreement at all or at least in a timely way’ (Review, 2012: 171–172). According to the Government, union tactics over greenfields bargaining can lead to major projects being delayed or abandoned, or to employer concessions in bargaining that are economically unsustainable (House of Representatives, 2014: ix). To address these concerns, the Bill introduces two modifications to the agreement-making framework for greenfields bargaining: the extension of existing good faith bargaining rules, and employer access to a three-month limit on bargaining.
Currently, good faith bargaining rules do not apply to greenfields bargaining because the definition of bargaining representatives in section 12 of the FW Act excludes representatives for greenfields agreements. Having been unable to identify a sound rationale for this exclusion, the Fair Work Review Panel recommended that the FW Act be amended to ensure greenfields agreement making is covered by the good faith bargaining obligations (Review, 2012: Recommendation 28). The proposed amendment to section 12 will mean that greenfields bargaining representatives are covered by the good faith bargaining rules, including requirements to meet and to recognise other bargaining representatives.
The second change to greenfields bargaining introduces an ‘optional three-month negotiation time frame’ (Pyne, 2014: 1084). This option may be invoked by the employer notifying each union bargaining representative at the commencement of bargaining that three months will be the negotiation period for the agreement (proposed s 178B). If agreement is not reached by the end of the three-month period, the employer may lodge its proposed agreement with the FWC for approval (proposed ss 182(4)(e), 185A). If approved, the agreement will be taken to have been made by the employer and the unions that were bargaining representatives in the negotiations (proposed s 182(4)).
Before approving the agreement, the FWC will be required to assess the agreement against existing benchmarks, including the ‘better off overall’ test, in determining whether to approve the agreement. In addition, the FWC must be satisfied that, overall, the agreement ‘provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work’ (proposed s 187(6)). A legislative note confirms that the FWC may have regard to conditions in the relevant geographical area when making this determination. However, the concept of ‘prevailing pay and conditions’ is otherwise undefined and has no established meaning in industrial case law. The Law Council of Australia has expressed concern that uncertainty about the meaning of the phrase may undermine the purpose of the new provision, which is to avoid delays to major projects caused by an impasse in bargaining at greenfields sites (Law Council of Australia, 2014: 5).
Individual flexibility agreements
Individual flexibility agreements (IFAs) were first introduced in 2009 to provide a mechanism for employers to make arrangements with individual employees that would vary the provisions of awards and enterprise agreements. This became necessary after the Labor Government removed the option of making individual statutory agreements, known as Australian Workplace Agreements (AWAs), in response to community concern about the erosion of employee conditions during the Work Choices period. The FW Act currently requires all enterprise agreements and awards to contain a flexibility term that specifies the types of arrangements that may be made with individuals (ss 144(1), 202(1)). Where an IFA is validly made, it has the effect of varying the relevant award or enterprise agreement in relation to the individual employee and employer (ss 144(2), 202(2)).
There are a number of provisions that were included in the FW Act to protect against the use of IFAs to undermine conditions of employment for individual workers. These protections were politically important for the Labor Government, which had gained office at least partly on the strength of the electorate’s concern about the exploitative use of ‘Work Choices’ AWAs. The current protections include that the arrangement must meet the ‘genuine needs’ of the employee and employer (FW Act, ss 144(1), 202(1)); that the employer and employee must ‘genuinely agree to’ the arrangement (ss 144(4)(b); 203(3)); and that either party may terminate the IFA unilaterally after giving notice in writing (FWC, 2013: 42; FW Act, s 203(6)).
Since their introduction, unions and employer bodies have consistently expressed dissatisfaction with IFAs. At one end of the spectrum, unions maintain that IFAs threaten the safety net (see e.g. Australian Council of Trade Unions (ACTU), 2012: 39; Shop, Distributive and Allied Employees Association (SDA), 2012: 55). At the other extreme, employer groups argue that IFAs are insufficiently flexible and that their usefulness is undermined by the availability of unilateral termination by either party at 28 days’ notice and by the prohibition on entering into IFAs at the commencement of the employment relationship (Australian Industry Group, 2012: 58–59, 68; Victorian Employers’ Chamber of Commerce and Industry (VECCI), 2012: 18).
In response to these views, the Fair Work Review Panel made a number of recommendations designed to ‘make IFAs easier to access and more attractive to both employers and employees’ (Review, 2012: 19). All but one of these recommendations has been implemented by the proposed amendments in the Bill. The first of these amendments increases the minimum period of notice required to terminate an IFA made under both awards and agreements to 90 days (proposed ss 144(4)(d), 203(6)(a)). This brings consistency across agreements and awards: whereas the current model flexibility term for enterprise agreements provides for a 28-day notice period (Fair Work Regulations, 2009, reg 2.08, Schedule 2.2), the most recent model flexibility term developed by the FWC for modern awards provides for a 13-week (90 day) period of notice (FWC, 2013: 42). This amendment implements Recommendation 12 of the Review.
Second, in response to Recommendation 11, the amendments provide the employer with a defence to a claim by an employee that they have been underpaid because an IFA does not meet the requirements of a flexibility term in an award or agreement. To invoke this defence, the employer must show that they had a reasonable belief that they had complied with the requirements for IFAs based on information available to them at the time the IFA was made (proposed ss 145AA, 204 A).
A third change to the IFA provisions imposes an additional requirement that the IFA must be accompanied by a written statement by the employee setting out why he or she believes, at the time the IFA is made, that it meets his or her genuine needs and results in him or her being ‘better off overall’ than would have been the case if the IFA had not been created (proposed ss 144(4)(ca), 203(4A)). The stated intention of the new requirement is to ‘strengthen protections for employees’ (Pyne, 2014). However, the Explanatory Memorandum highlights that the statement may also be used against the employee to support an employer’s defence that they had a reasonable belief that the IFA met the requirements of a flexibility term (House of Representatives, 2014: 5).
Fourth, the Amendment Bill inserts a legislative note to section 144(4) of the FW Act to confirm that the ‘better off overall’ test in relation to IFAs may be satisfied by the provision of non-monetary benefits. Again, the ‘genuine needs statement’ may be used as evidence of the employee’s subjective preferences to assess the value (to that employee) of any non-monetary benefits (House of Representatives, 2014: 6). The Explanatory Memorandum illustrates the concept of a non-monetary benefit by giving examples of employees working outside ordinary hours in order to meet their family responsibilities or other personal commitments. In these examples, the employee is ‘genuinely happy’ to give up penalty rates that would otherwise apply, since they have sought these non-standard hours arrangements to suit their own individual needs (House of Representatives, 2014: 6). This amendment only partially implements recommendation 9 of the Review, which had included the additional requirement that the value of the monetary benefit foregone would need to be specified in writing and be relatively insignificant, and that the value of the non-monetary benefit would need to be proportionate to this amount (Review, 2012: 108).
The stated objective of the Fifth Amendment to the IFA provisions is to address the problem of unions subverting the purpose of the provisions by inserting flexibility clauses in enterprise agreements that only allow IFAs to be made in relation to a very restricted range of matters. This problem was highlighted in Department of Education, Employment and Workplace Relations (DEEWR) data that was presented to the Review Panel. The data shows that only 57.4% of enterprise agreements approved under the FW Act between 1 July 2009 and 30 September 2011 adopted the model flexibility term or a term that IFAs to be made about any matter in the agreement, while the remaining 43.9% adopted a specific flexibility term that restricted the types of matters that could be covered by an IFA (Review, 2012: 290). A DEEWR survey of 140 agreements containing a specific flexibility term indicates that as many as 34% of these agreements restricted the scope of IFAs to only one matter and 92% restricted the scope of IFAs to four or fewer matters (Review, 2012: 290). The amendment requires such flexibility clauses to permit IFAs to be made that deal with enterprise agreement provisions about arrangements for when work is performed, overtime rates, penalty rates, allowances, and leave loading (proposed s 203(2)(aa)). These five matters are covered by the model flexibility term that is inserted into awards by the FWC (FWC, 2013) and by the model flexibility term for enterprise agreements (Fair Work Regulations, 2009, reg 2.08, Schedule 2.2). This amendment implements Recommendation 24 of the Review.
The only recommendation of the Review regarding IFAs that has not been included in the Amendment Bill is one that would require the employer to notify the Fair Work Ombudsman that it has made an IFA, providing details of the date of the agreement, the name of the individual employee covered by it, and the name of the modern award or enterprise agreement that is modified by the arrangement (Review, 2012: Recommendation 10). This recommendation was strongly supported by unions, who had advocated that IFAs should be lodged with a public agency to provide greater transparency (ACTU, 2012: 60) and to allow data to be collected to monitor the ways in which IFAs are used (SDA, 2012: 14). To some extent, the implemented recommendations of the Review Panel were predicated onan accompanying requirement of transparency. In particular, the suggested employer defence to underpayment claims (on the basis that it had a ‘reasonable belief’ that it had complied with the IFA rules) was conditional on the employer having notified the Fair Work Ombudsman of the details of the IFA (Review, 2012: 109).
Union right of entry
Right of entry laws have been repeatedly altered by successive Labor and Coalition Governments to reflect their divergent views about where the balance should lie between the competing rights of unions to represent their members effectively and the rights of employers to run their businesses without undue interference. Despite this persistent tinkering with the rules over nearly two decades, there are a number of key elements that have remained unchanged from the time that a detailed legislative framework for right of entry was introduced in 1997. These elements are that union officials may only enter premises where they have a permit; entry must be for the purposes of investigating suspected breaches of the FW Act or other industrial instruments, or to hold discussions with eligible employees; permit holders must provide notice to the employer of the proposed time, place, and purpose of entry to the premises; and the relevant industrial tribunal has powers to deal with disputes that arise from the exercise of rights of entry.
Perhaps the most significant example of tinkering within this framework relates to the eligibility rules for unions to enter workplaces to hold discussions with employees. In 2006, the Work Choices legislation substantially curtailed this right of entry for discussion purposes by limiting its scope to discussions with employees who were both eligible to join the union and covered by an award or collective agreement that was binding on the union. This had the effect of excluding unions from a worksite once a non-union enterprise agreement and/or individual statutory agreements covered the employees at the site (Forsyth and Sutherland, 2006: 225). The FW Act relaxed this limitation by providing union entry rights for the purpose of discussions with employees who are eligible to be represented by the union, and who wish to participate in discussions (FW Act, s 484).
The proposed amendments to section 484 once again constrain unions from entering workplaces for discussion purposes by requiring the union to be covered by an enterprise agreement that applies at the premises. Where the union is not covered by such an agreement, it may only gain entry for discussion purposes at the invitation of an employee who is eligible to be a member of the union (proposed s 484(2)). To provide evidence of this invitation, proposed section 520A creates a mechanism that allows the FWC to issue an invitation certificate where it is satisfied the union has been invited onto the premises for discussion purposes by an eligible employee. One of the benefits of this new mechanism is that unions will no longer need to disclose to the employer the identity of the employee who has invited the unions into the workplace (House of Representatives, 2014: 32). On the other hand, the process is somewhat cumbersome and the legislation does not make clear whether other forms of evidence (including oral or written invitations from eligible employees) will be sufficient to satisfy section 484(2).
In addition to these changes, the proposed amendments to right of entry provisions repeal two reforms introduced by the Labor Government under the Fair Work Amendment Act 2013, which came into effect on 1 January 2014 (see McCrystal, 2014: 334–335), and reinstate a number of rules that were previously in place under FW Act. First, the Bill removes the use of the meal or break room for union meetings where agreement cannot be reached about an alternative venue. The Government has justified the change on the basis that the use of the meal or break room can cause disruption to workers who are not union members (House of Representatives, 2014: p xxi). The reinstated rules require union officials to comply with any reasonable requirement by the occupier of the premises to conduct interviews or hold discussions in a particular room or area (proposed s 492). Second, the Bill proposes to remove the requirement for employers at remote sites to facilitate transport to, and/or provide accommodation at, those sites where no other transport or accommodation is available (proposed ss 521A–521D). In the absence ofthese provisions, unions will need to make their own arrangements to access remote sites.
The Bill also retains in a modified form several initiatives that were introduced by the Fair Work Amendment Act 2013. The first is the power of the FWC to arbitrate a dispute over the frequency of union visits for discussion purposes. Currently, where the FWC determines that the frequency of union visits has required ‘an unreasonable diversion’ of ‘critical resources’ by the occupier of the work premises, it may impose conditions on an entry permit, suspend or revoke the permit, or make other appropriate orders (FW Act, s 505A). The Bill proposes to expand this power of the FWC by repealing the requirement for a diversion of critical resources as a condition of arbitration. The Government has argued that it will be very difficult for employers on major projects to satisfy the ‘critical resources’ benchmark since these employers will usually have a large number of employees available on site to facilitate union visits to the workplace, and these employees are unlikely to be considered critical to the construction process (House of Representatives, 2014: xxi). It is difficult to determine whether this view is correct, given that the FWC has not had an opportunity to make a finding under section 505A in the short period since the provision commenced operating in January 2014.
In a further shift in favour of employers, the proposed provisions require the FWC, when considering ‘fairness between the parties’ in determining disputes, to take into account the combined impact on the employer or occupier of visits by unions under entry permits (proposed s505A(6)).
Changes to the national employment standards
The Bill implements three changes to minimum entitlements under the National Employment Standards. These changes respond to recommendations 2, 3 and 6 of the 2012 Review. First, the Bill will repeal section 130(2) of the FW Act to ensure that an employee cannot take or accrue leave under the FW Act while the employee is absent from work and receiving workers' compensation benefits. Second, the Bill will require employers to provide an employee with a reasonable opportunity to discuss any request they have made to extend unpaid parental leave (proposed s 76(5)).
Third, the Bill removes from the FW Act the requirement to pay annual leave loading where annual leave is paid out to an award-covered employee on the termination of their employment. Annual leave loading on termination will only be required to be paid where a modern award or enterprise agreement explicitly provides for such a payment (proposed ss 55(4), 90(2)). This change addresses what appears to be an anomaly in the FW Act, given that annual leave loading was originally designed to compensate an employee for the loss of penalties and overtime rates that would otherwise be paid during employment and was not typically paid on termination (Review, 2012: 99).
Transfer of business
The Fair Work Amendment Bill 2014 also implements recommendation 38 of the Review by amending the transfer of business rules. Under proposed sections 311(1) and 768AD of the FW Act, industrial instruments will not transfer to an associated business of an employer where an employee elects to take up a new employment position at that business on their own initiative prior to the termination of their old employment position. Instead, the employee will be subject to the terms and conditions of employment that cover the new employer. Under the existing legislation, an employee in these circumstances would retain the benefit of the old employer’s industrial instruments unless the new employer made an application to the FWC to prevent this from occurring.
Bargaining processes Bill
Introduced during the last sitting days of Parliament for the year, the Fair Work Amendment (Bargaining Processes) Bill 2014 fulfils another preelection policy commitment of the Coalition (Coalition, 2013: 9). The Bill requires the FWC, as a prerequisite to approval of the agreement, to be satisfied that the bargaining parties have discussed productivity improvements as part of the negotiations (proposed s 187(1)). It is worth noting that while the Review panel recommended that the roles of the FWC and the Fair Work Ombudsman be expanded to include activities designed to encourage the adoption of productivity enhancing provisions in agreements, it explicitly stated that legislative amendments were not required to facilitate these activities (Review, 2012: Recommendation 1). In the absence of any requirement for the FWC to evaluate either the genuineness of productivity discussions or the suitability of any proposed productivity measures, it appears unlikely that this new procedural mechanism willbring about the cultural change necessary to achieve workplace productivityimprovement.
The Bill also inserts new limits on industrial action by making it more difficult for the bargaining parties to obtain a protected action ballot order, which allows a secret ballot of employees to be undertaken to authorise the industrial action. The FW Act requires the FWC to be satisfied that an applicant for a protected action ballot order is ‘genuinely trying to reach an agreement’ before making such an order (FW Act, s 443(1)(b)). The Bill mandates the factors that the FWC will be required to consider in determining whether the applicant is genuinely trying to reach an agreement. These factors include the steps taken by the applicant to reach agreement; the extent to which the applicant has communicated its claims; whether the applicant has provided a considered response to bargaining proposals; and the extent to which bargaining has progressed (proposed s 443(1A)). In addition, the FWC will not be permitted to make a protected action bargaining order where it determines that the claims of an applicant are ‘manifestly excessive’ or ‘would have a significant adverse impact on productivity at the workplace’ (proposed s 443(2)).
BCI Bills
The BCI Bills propose to reestablish the Australian Building and Construction Commission (ABCC), which was abolished by the Labor Government in 2010 and replaced by the Fair Work Building Industry Inspectorate. The Bills would not only restore the ABCC’s powers, but would also expand its remit to oversee workers involved in transport and the supply of goods to the construction industry. In addition, the Bills propose to insert into the FW Act a new prohibition on unlawful picketing, expand the restrictions on unlawful industrial action in the industry and increase the penalties for breach of these provisions. In anticipation of the passage of the BCI Bills, the Federal Government has introduced the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (Abetz, 2014a). The code is ‘soft’ law that is intended to influence industrial relations outcomes by requiring business compliance as a condition of eligibility to tender for Federal Government-building contracts. Although the Code is not legally enforceable until the BCI Bills have been passed by the Federal Parliament, it is nevertheless influencing outcomes in the sector since it requires enterprise agreements made after 24 April 2014 to be fully compliant with its provisions (Abetz, 2014a).
Workplace gender equality
Through legislative instruments enacted in 2014, the Coalition Government has delayed the implementation of key reporting requirements under the Workplace Gender Equality Act 2012 (Cth) (WGE Act), while also introducing a new minimum standard for employers to put in place policies and strategies that support gender equality. The WGE Act introduced important reforms to gender equality reporting by employers by shifting the focus from mere reporting on gender equality programs (processes) to reporting on progress towards gender equality (outcomes) (see McCrystal and Orchiston, 2013: 332; Sutherland, 2013). For the purposes of these reports, the legislation requires private sector employers of more than 100 workers to provide specific information relating to ‘gender equality indicators’ (GEIs) (WGE Act, s 13). This includes information about the gender composition of their workforce and their boards; how much men and women are paid for similar work; the availability and utility of flexible working arrangements; and steps taken to consult with workers about gender equality issues (WGE Act, s 3(1)).
For the first reporting period after the legislation was enacted (1 April 2013 to 31 March 2014), employers were required to report against a prescribed list of matters relating to each of the six GEIs (Workplace Gender Equality (Matters in Relation to GEIs) Instrument 2013). The Agency received reports from 11,000 employers covering 3.9 million employees (one-third of the workforce) and has indicated it will use the data from these initial reports as a benchmark against which future results can be assessed (Workplace Gender Equality Agency, 2014). Employers can also access a customised report from the Agency that compares their own performance with suitable comparison groups of employers. The first report has received considerable media attention, which highlighted its stark findings that women occupy half of the workforce but only a quarter of management positions, and that women are paid 24.7% less than men for comparable work (see e.g. Gordon, 2014).
An expanded list of matters for reporting was due to take effect for the second reporting period (1 April 2014 to 31 March 2015) and subsequent periods. This included a requirement to provide disaggregated data by gender on various components of remuneration (including bonuses and performance pay) and to report on the composition of recruitment applications by gender and the proportion of employees who resigned or were promoted by gender. It also added a requirement to report on the number of employees returning to work from parental leave, or extending parental leave, by gender. It is significant that the Government has now delayed implementation of these expanded reporting requirements for 12 months (see Workplace Gender Equality (Matters in Relation to GEIs) Amendment Instrument 2014 (No. 1)). During this period of suspension, the Government is consulting with stakeholders about the appropriateness of the requirements (Abetz, 2014b). This may provide the basis for the expanded reporting requirements to be altered or removed before they take effect in 2015.
For employers of 500 or more workers, the Government has introduced a new minimum standard under the Workplace Gender Equality (Minimum Standards) Instrument 2014. The new standard requires these employers to have in place by 1October 2014 policies or strategies to support one or more of the following objectives in the employer’s workplace: gender equality; equal remuneration between women and men; flexible working arrangements for employees withcaring responsibilities; and/or prevention of sex-based harassment and discrimination.
State developments
Tasmania
The Workplaces (Protection from Protesters) Act 2014 was passed by the Tasmanian House of Assembly on 25 November 2014. The Act creates a new criminal offence, which applies where a protester knowingly hinders or obstructs business activity at a workplace (s 6). It is a separate offence to cause or threaten damage to business premises (s 7). It is also an offence to remain on business premises after being directed to leave by police (s 8). Although the legislation as originally drafted provided for on-the-spot fines of $2000 for individual protesters who breach the provisions, amendments in the Legislative Council reduced these fines to $280 (s 16), but increased the maximum penalty for repeat offenders from two years to four years in jail, or a maximum fine of $10,000, or both (s 19(2)(b)). There are some common-sense exceptions to the legislation. For example, it is permissible to participate in a march or procession that passes business premises ‘at a reasonable speed, once on any day’ (s 6(7)).
Queensland
In response to a review of the operation of the national model work health and safety laws in Queensland, legislation was passed in April 2014 to amend the Work Health and Safety Act 2011 (Qld) (WHS Act). The Work Health and Safety and Other Legislation Amendment Act 2014 aims to address the concerns of the construction industry about the misuse of right of entry powers by unions, as evidenced by recent court and commission findings against union officials in the sector (Legislative Assembly, 2014: 1). Following the amendments, the WHS Act now includes a requirement for health and safety representatives to provide at least 24 hours’ notice of their intention to enter a workplace (WHS Act, s 119(3)) and no longer allows health and safety representatives to direct workers to stop unsafe work.
Western Australia
While Queensland was an early adopter of the national model work health and safety laws, the Western Australian government has delayed its implementation of the model, while maintaining an in-principle commitment to national harmonisation of the laws. On 23 October, it took a significant step in tabling a draft Work Health and Safety Bill 2014 in Parliament for public comment. Nevertheless, the Government has emphasised the ways in which the Bill proposes to adapt the national model work health and safety laws to suit the Western Australian environment, and has reserved the right to substantially alter the Bill, or return to the existing Western Australian Occupational Safety and Health Act 1984, following public consultation (Mischin, 2014: 7796–7799).
Victoria
Like the Federal Government, the Victorian Government has introduced a new Code of Practice for the Building and Construction Industry (Victorian Code). This code came into effect on 8 October 2014. In addition to the requirements under the existing code for contractors to demonstrate compliance with the FW Act and occupational health and safety legislation, the new code requires compliance with the Competition and Consumer Act 2010 (Victorian Code, 2014: cl 5). Participants under the new code are also required to report union demands that the participant engage in a secondary boycott (cl 11). In a novel development, the code requires contractors to have ‘an approach to managing drug and alcohol issues in the workplace that helps to ensure that no person attending the site does so under the influence of alcohol or other drugs’ (cl 8.2). Tenders on projects of $10 million or more must include detailed information about the proposed drug and alcohol program, including how the tenderer will ensure that subcontractors comply with the drug and alcohol policy, the medical testing methods that will be used, the process for selecting those to be tested and the frequency of testing, and the outcomes of a positive test result (cl 4.3(b)(iii), 9.1(f)).
Conclusion
At the national level in 2014, the Coalition Government sought the passage of six industrial relations Bills through the Parliament. Despite claiming that the public no longer fears a return to Work Choices (Massola, 2014), the Government introduced these reforms in small steps, closely matching the Coalition’s pre-election policy. A consistent objective that appears to underpin many of the proposed changes is to constrain union activities while reducing the regulatory burden on employers. This aspect of the Government’s legislative agenda once again raises the ongoing conflict between managerial prerogative and the rights of unions which has dominated the industrial relations landscape in Australia for the past 20 years. The fact that these Bills have languished in the Parliament suggests that the Government has failed to strike the right balance in resolving this conflict.
In the absence of any Federal industrial relations legislation passing into law in 2014, the main regulatory change affecting workplaces was the postponement of key reporting requirements under Workplace Gender Equality legislation and the introduction of a new minimum standard for employers to implement strategies to promote gender equality. There have been a number of significant developments at the State level, including the introduction of new criminal offences in Tasmania to protect businesses from the activities of protesters; amendments to right of entry provisions governing health and safety representatives in Queensland; the release of a draft Work Health and Safety Bill in Western Australia; and the adoption of a new building and construction industry code in Victoria.
Given the lack of progress in securing the passage of Federal industrial legislation in 2014, a sizeable legislative agenda will be carried forward into the Federal parliament in 2015. Aspects of this agenda may be overtaken when the Coalition fulfils its pre-election promise for the Productivity Commission to review the impact of the FW Act on the ‘economy, productivity and jobs’, with a view to taking any recommended reforms to the 2016 Federal election (Coalition, 2013: 13). It is anticipated that the Productivity Commission review will propose far-reaching changes which may well test the electorate’s willingness to countenance yet another overhaul of the Australian industrial relations system.
Footnotes
Declaration of conflicting interests
The author declares that there is no conflict of interest.
Funding
This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.