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.
Overview
The Fair Work Amendment Act 2013 was enacted by the Parliament of Australia to amend the Fair Work Act 2009 and the Fair Work (Registered Organisations) Amendment Act 2012. This legislation was introduced to address various gaps and issues within the existing workplace relations framework, aiming to enhance family-friendly work arrangements, provide greater flexibility and protections for employees, and clarify the functions and roles of the Fair Work Commission. The policy objective behind these amendments is to create a more equitable and balanced workplace environment that supports both employees' personal and professional needs, while also ensuring that the Fair Work Commission can effectively fulfil its roles beyond dispute resolution. The Act's provisions cover a range of areas, including unpaid parental leave, flexible working arrangements, safe job transfers for pregnant employees, and expanded anti-bullying measures. The commencement of these provisions varies, with some taking effect immediately upon Royal Assent and others on specific dates as determined by subsequent proclamations or linked to the commencement of related Acts.
Scope and Application
The Fair Work Amendment Act 2013 applies to various entities and individuals within the Australian labour market, primarily amending the Fair Work Act 2009 and the Fair Work (Registered Organisations) Amendment Act 2012. It targets employers, employees, and the Fair Work Commission, introducing a range of amendments aimed at enhancing family-friendly workplace practices, clarifying the scope and application of safe job transfers for pregnant employees, and expanding the rights of employees to request flexible working arrangements. The Act extends its reach across the Commonwealth, impacting all jurisdictions within Australia. Certain provisions are subject to commencement on specific dates, either on Royal Assent or on days fixed by Proclamation, with the majority of substantive amendments set to take effect from 1 July 2013, and others linked to the commencement of provisions in related acts such as the Fair Work Amendment (Transfer of Business) Act 2012 and the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012. While the Act itself does not outline specific exclusions or exemptions, the detailed provisions and their commencement schedules ensure a phased and coordinated implementation of the legislative changes.
Key Provisions
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 (ROA Act). The main operative sections of the Act introduce various amendments aimed at enhancing family-friendly provisions, expanding rights for pregnant employees, and clarifying the functions of the Fair Work Commission (FWC). Section 1 to 3 of the Act and certain technical amendments commence on the day the Act receives Royal Assent (section 2(1) of the Act). Other significant changes, such as the introduction of new family-friendly arrangements and expanded rights for pregnant employees, will commence on 1 July 2013, as fixed by Proclamation (section 2(1) of the Act).
The Act imposes several obligations on employers and employees. Employers must comply with the new family-friendly provisions, including the right for employees to request flexible working arrangements and the expanded right for pregnant employees to transfer to a safe job. Employees must adhere to the notice and evidence requirements for unpaid parental leave and no safe job leave. The amendments also require employers to facilitate the consultation process about changes to rosters or working hours and to ensure compliance with anti-bullying measures. Furthermore, the Act imposes obligations on the FWC to clarify its role in conciliation, mediation, and providing opinions and recommendations in non-dispute circumstances.
Breaching the provisions of the Act may result in various consequences. Employers who fail to comply with the new family-friendly provisions or anti-bullying measures may face legal action from employees. The Act does not specify maximum penalties for breaches; however, penalties for contraventions of the FW Act generally include fines up to $21,000 for individuals and $105,000 for bodies corporate, as well as potential civil remedies and orders. The Fair Work Amendment Act 2013 aims to strengthen workplace rights and protections, and non-compliance with its provisions can lead to significant legal and financial repercussions for employers.