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A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
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Registered 26 Mar 2018
Introduced HR 26 Mar 2018
Table of contents.

2016‑2017‑2018

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Better Work/Life Balance) Bill 2018

 

No.      , 2018

 

(Mr Bandt)

 

 

 

A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Fair Work Act 2009                                                                                                     3

 

 


A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Fair Work Amendment (Better Work/Life Balance) Act 2018.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Fair Work Act 2009

1  Before paragraph 5(8)(a)

Insert:

                    (aa)  provided by a flexible working arrangements order (see Subdivision B of Division 4 of Part 2‑2); and

2  Section 12

Insert:

flexible working arrangements order: see subsection 65B(1).

3  Subsection 22(4) (including the note)

Repeal the subsection, substitute:

Meaning for Division 5, and Subdivision A of Division 11, of Part 2‑2

             (4)  For the purposes of Division 5, and Subdivision A of Division 11, of Part 2‑2:

                     (a)  a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

                              (i)  any period of unauthorised absence; or

                             (ii)  any other period of a kind prescribed by the regulations; and

                     (b)  a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

                     (c)  subsections (1), (2) and (3) do not apply.

Note:          Division 5, and Subdivision A of Division 11, of Part 2‑2 deal, respectively, with parental leave and related entitlements, and notice of termination or payment in lieu of notice.

4  Before paragraph 43(2)(a)

Insert:

                    (aa)  those terms and conditions arising from a flexible working arrangements order (see Subdivision B of Division 4 of Part 2‑2); and

5  Subsection 44(2)

Omit “65(5)” (first occurring), substitute “65(5), 65A(5)”.

6  Subsection 44(2) (notes 1 and 2)

Repeal the notes, substitute:

Note 1:       Subsections 65(5) and 65A(5) state that an employer may refuse a request for flexible working arrangements only for serious countervailing business reasons. Subsection 76(4) states that an employer may refuse an application to extend unpaid parental leave only on reasonable business grounds.

Note 2:       Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had serious countervailing business reasons or reasonable business grounds under subsection 65(5), 65A(5) or 76(4)).

7  Paragraph 61(2)(b)

Before “Division 4”, insert “Subdivision A of”.

8  Division 4 of Part 2‑2

Repeal the Division, substitute:

Division 4Flexible working arrangements

Subdivision ARequests for flexible working arrangements

65  Requests for flexible working arrangements

Employee or organisation may request change

             (1)  An employee, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee’s working arrangements.

Note:          Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

             (2)  Neither the employee, nor the organisation, is entitled to make the request unless:

                     (a)  for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

                     (b)  for a casual employee—the employee:

                              (i)  is a long term casual employee of the employer immediately before making the request; and

                             (ii)  has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

             (3)  The request must:

                     (a)  be in writing; and

                     (b)  set out details of the change sought and of the reasons for the change.

Responding to the request

             (4)  The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

             (5)  The employer may refuse the request only for serious countervailing business reasons.

             (6)  If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

65A  Requests for flexible working arrangements—carers

Request for change for employee who is a carer

             (1)  An employee who has responsibility for the care of another person, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee’s working arrangements to assist the employee to care for the other person.

Note:          Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

             (2)  Neither the employee, nor the organisation, is entitled to make the request unless:

                     (a)  for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

                     (b)  for a casual employee—the employee:

                              (i)  is a long term casual employee of the employer immediately before making the request; and

                             (ii)  has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

             (3)  The request must:

                     (a)  be in writing; and

                     (b)  set out details of the change sought and of the reasons for the change.

Responding to the request

             (4)  The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

             (5)  The employer may refuse the request only for serious countervailing business reasons.

             (6)  If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

Subdivision BFlexible working arrangements orders

65B  FWC may make flexible working arrangements order

Power to make flexible working arrangements order

             (1)  The FWC may make any order (the flexible working arrangements order) it considers appropriate to ensure that an employer complies with section 65 or 65A.

Who may apply for flexible working arrangements order

             (2)  The FWC may make a flexible working arrangements order only on application by any of the following:

                     (a)  an employee or organisation whose request under subsection 65(1) or 65A(1) for a change in working arrangements has been refused;

                     (b)  an employee organisation that is entitled to represent an employee covered by paragraph (a);

                     (c)  the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner.

65C  Implementation of flexible working arrangements in stages

                   A flexible working arrangements order may implement changed working arrangements in such stages (as provided in the order) as the FWC thinks appropriate.

65D  Contravening a working arrangements order

                   An employer must not contravene a term of a flexible working arrangements order.

Note:          This section is a civil remedy provision (see Part 4‑1).

65E  Inconsistency with modern awards and enterprise agreements

             (1)  A term of a modern award has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a flexible working arrangements order that applies to the employee.

             (2)  A term of a flexible working arrangements order has no effect in relation to an employee to the extent that it is inconsistent with a term of an enterprise agreement that applies to the employee.

Note:          A modern award or enterprise agreement must not exclude the right to make a request under Subdivision A or exclude any provision of Subdivision A: see section 55.

Subdivision CState and Territory laws that are not excluded

66  State and Territory laws that are not excluded

             (1)  This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

             (2)  However, a law of a State or Territory has no effect in relation to an employee to the extent that it provides an employee entitlement in relation to flexible working arrangements that is inconsistent with a term of an enterprise agreement that applies to the employee.

9  Section 146 (note)

Repeal the note, substitute:

Note:          The FWC or a person must not settle a dispute about whether an employer had serious countervailing business reasons or reasonable business grounds under subsection 65(5), 65A(5) or 76(4) (see subsections 739(2) and 740(2)).

10  Subsection 186(6) (notes 1 and 2)

Repeal the notes, substitute:

Note 1:       The FWC or a person must not settle a dispute about whether an employer had serious countervailing business reasons or reasonable business grounds under subsection 65(5), 65A(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2:       However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5), 65A(5) or 76(4).

11  Paragraph 341(2)(i)

Before “Division 4”, insert “Subdivision A of”.

12  Subsection 539(2) (after table item 5)

Insert:

 

Part 2‑2—National Employment Standards

5AA

65D

(a) a person to whom a flexible working arrangements order relates;

(b) an organisation entitled to represent a person to whom a flexible working arrangements order relates

(a) the Federal Court;

(b) the Federal Circuit Court;

(c) an eligible State or Territory court

for a serious contravention—600 penalty units; or

otherwise—60 penalty units

 

13  Subsection 545(1) (note 4)

Repeal the note, substitute:

Note 4:       There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 65A(5), 76(4), 463(1) or 463(2) (which deal with serious countervailing business reasons, reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).

14  After paragraph 557(2)(c)

Insert:

                    (ca)  section 65D (which deals with contraventions of flexible working arrangements orders);

15  After paragraph 557C(3)(c)

Insert:

                    (ca)  section 65D (which deals with contraventions of flexible working arrangements orders);

16  After paragraph 558B(7)(c)

Insert:

                    (ca)  section 65D (which deals with contraventions of flexible working arrangements orders);

17  Subparagraph 653(1)(c)(i)

Omit “subsection 65(1)”, substitute “subsection 65(1) or 65A(1)”.

18  Before paragraph 675(2)(a)

Insert:

                    (aa)  a flexible working arrangements order;

19  After paragraph 716(1)(d)

Insert:

                   (da)  a term of a flexible working arrangements order;

20  Subsection 739(2)

Omit “reasonable business grounds under subsection 65(5)”, substitute “serious countervailing business reasons or reasonable business grounds under subsection 65(5), 65A(5)”.

21  Subsection 739(2) (note)

Omit “65(5)”, substitute “65(5), 65A(5)”.

22  Subsection 740(2)

Omit “reasonable business grounds under subsection 65(5)”, substitute “serious countervailing business reasons or reasonable business grounds under subsection 65(5), 65A(5)”.

23  Subsection 740(2) (note)

Omit “65(5)”, substitute “65(5), 65A(5)”.