EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment and Workplace Relations
Subject - Fair Work Amendment Act 2013
Proclamation
The Fair Work Amendment Act 2013 (the Act) amends the Fair Work Act 2009 (FW Act) and the Fair Work (Registered Organisations) Amendment Act 2012 (the ROA Act). Section 2 of the Act provides for the commencement of the Act’s provisions.
Item 1 of the table in subsection 2(1) provides for sections 1 to 3 (and anything not elsewhere covered by the table) to commence on the day the Act receives the Royal Assent. Other provisions that commence on Royal Assent are technical amendments in items 2 to 4 and 6 to 8 of Schedule 6 (table items 12 and 14), and application and transitional provisions in Schedule 7 (table item 18).
Item 2 of the table in subsection 2(1) provides for Parts 1 to 3 of Schedule 1 to the Act to commence on a day to be fixed by Proclamation. Parts 1 to 3 of Schedule 1 contain amendments to the FW Act to introduce new family friendly arrangements, including providing further flexibility in relation to concurrent unpaid parental leave, ensuring that any special maternity leave taken will not reduce an employee’s entitlement to unpaid parental leave and expand access to the right to request flexible working arrangements to more groups of employees.
Items 4, 6A and 10 of the table in subsection 2(1) provide for Part 5 of Schedule 1, Schedule 3A and items 3 and 4 of Schedule 5 respectively to commence at the same time as these provisions.
Part 5 of Schedule 1 contains amendments to the FW Act to expand the right for pregnant women to transfer to a safe job to all pregnant employees regardless of their length of service. The amendments in Part 5 also provide that if there is no appropriate safe job available:
- The current arrangements for an employee who is entitled to unpaid parental leave and who has complied with the notice and evidence requirements continue and the employee will be entitled to paid no safe job leave, and
- A new provision provides that an employee who is not entitled to unpaid parental leave and who complies with any evidence requirements is entitled to unpaid no safe job leave.
Schedule 3A and items 3 and 4 of Schedule 5 make amendments in relation to the Fair Work Commission (FWC). The amendments in Schedule 3A clarify the FWC’s ability to conciliate, mediate, express opinions and make recommendations in circumstances other than when dealing with disputes under the FW Act. Items 3 and 4 of Schedule 5 provide for greater clarity about the FWC’s functions and remove a potential impediment to FWC Members being considered for appointment to a wider range of roles outside the FWC which draw on their experience and expertise.
The Proclamation fixes 1 July 2013 as the day on which Parts 1 to 3 of Schedule 1 to the Act commence. This has the effect of also commencing Part 5 of Schedule 1, Schedule 3A and items 3 and 4 of Schedule 5 at the same time.
Items 3, 5, 6, 7 and 7A of the table in subsection 2(1) provide for the commencement of amendments relating (respectively) to consultation about changes to rosters or working hours, the modern awards objective, anti‑bullying measures, right of entry and consent arbitration for general protections and unlawful termination on 1 January 2014.
Items 8, 9, 11, 13, 15, 16, 17 and 17A of the table in subsection 2(1) of the Act link the commencement of the Act’s remaining amendments to the commencement of specified provisions of the Fair Work Amendment (Transfer of Business) Act 2012, the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012, the Fair Work Amendment Act 2012 and the ROA Act.
While this instrument has not been the subject of consultation, it is of a machinery nature only. The development of the Act, including its commencement provisions, was the subject of extensive consultation with the National Workplace Relations Consultative Council and their technical advisers through the Committee on Industrial Legislation, and State and Territory government officials.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.