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Employment Law Update: December 2018

Whilst all the talk so far in December regarding politics has been about getting sick asylum seekers off Nauru, national cyber security, the government potentially losing a vote in the House of Representatives for the first time since 1929 and the never-ending in-fighting amongst the Liberal Party, you would be forgiven for missing some rather important legislation that passed in relation to employment law and industrial relations. We take a quick look at the significance of these legislative changes.

Domestic violence leave now in the National Employment Standards

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) passed on 6 December 2018 which enshrined in the National Employment Standards the right of all employees covered by the Fair Work Act 2009 (Cth) to take up to five days’ unpaid family and domestic violence leave each year. This leave will be available in full at the commencement of each 12 month period, rather than accruing through the year, and will not accumulate year to year.

All types of employees, including full-time, part-time and casual, will be able to access the leave. The entitlement will be available in full to part-time and casual employees rather than being pro-rated as occurs with certain other entitlements.

The Explanatory Memorandum outlines the situations where employees are able to access the leave such as where the employee is experiencing family and domestic violence, or where they need to do something to deal with the impact of family and domestic violence and it is impractical to do so outside of work hours. For example, this could include where the employee needs to make arrangements for their own safety, or for the safety of a close relative or where the employee needs to attend an urgent court hearing.

Four-yearly reviews of Modern Awards scrapped

The Fair Work Commission will no longer be required to conduct four-yearly reviews of modern awards with the passage of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 on 5 December 2018. This follows a joint letter from unions and employer groups in 2016 asking for the reviews to be scrapped due in part to the major strain the reviews have placed on the resources of representative bodies.  

A further reason for the amendment was the time it has taken for the current four-yearly review process by the Fair Work Commission. The current four yearly review commenced on 1 January 2014 and is yet to be completed despite the fact that the next four-yearly review cycle was set to commence as soon as practicable after 1 January 2018.

Instead, with the legislative changes, awards will now be reviewed on an “as-needs basis”. Awards will also still be able to be amended or varied upon application at any time provided the variation is necessary to meet the objectives of the modern award. The legislative change will be a relief for many different stakeholders as it will free up the resources of the Fair Work Commission, employer groups and unions.

Relaxation of strict procedural requirements for enterprise agreement approval

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 also provided the Fair Work Commission with powers to approve enterprise agreements despite minor procedural and technical errors. Previously, due to the wording of the Fair Work Act 2009 (Cth), the procedural requirements for the approval of an enterprise agreement had been strictly applied by the Fair Work Commission especially in relation to the Notice of Representational Rights (NERR) (this informs the employee of their right to be represented). This had lead to frustrating situations where the Fair Work Commission was unable to approve an enterprise agreement because, for instance, additional pages had been stapled to the NERR or because the NERR had been printed on company letterhead.

With the recent changes, the Fair Work Commission will now be able to approve enterprise agreements containing minor errors so long as such errors were not likely to have disadvantaged employees.  This is good news for both employers and employees as the common-sense reforms should lead to less delays

 

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