Fair Work Amendment Act 2013

The Fair Work Amendment Act 2013 amended the Fair Work Act 2009 across several separate areas rather than making one single change. The main practical topics for employers are family-friendly measures, consultation about roster and hours changes, the modern awards objective, and a new anti-bullying regime through the Fair Work Commission.

In the family-friendly area, the Act changed special maternity leave notes, parental leave notice rules and concurrent leave, the right to request flexible working arrangements, and transfer to a safe job and no safe job leave for pregnant employees. It also inserted requirements so modern awards and enterprise agreements deal specifically with consultation about changes to regular rosters or ordinary hours of work.

Separately, the Act added an anti-bullying framework that allows a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. That framework has its own coverage rules, and businesses should not assume it applies in exactly the same way as every other part of the Fair Work Act.

This Act affects national workplace relations rules, but not every amendment operates in the same way for every business. Employers should check the specific part they are relying on.

For flexible work, parental leave and safe job changes, the amendments sit within the National Employment Standards framework in the Fair Work Act 2009. Businesses with national system employees should check the underlying Fair Work Act provisions as amended and confirm employee eligibility, notice requirements and evidence requirements before making decisions.

For consultation about changes to regular rosters or ordinary hours, the amendments require modern awards to include a consultation term and require enterprise agreements to include a consultation term covering those changes. That means award coverage and enterprise agreement coverage matter. If your workforce is not covered by a modern award, or if there is no enterprise agreement applying to the relevant employees, you should not assume the same instrument-based consultation term applies.

For anti-bullying applications, the scope is different again. The worker must be at work in a constitutionally-covered business. The legislation says a constitutionally-covered business includes a business or undertaking conducted by a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory, or a business or undertaking conducted principally in a Territory or Commonwealth place.

The anti-bullying regime also uses the broader Work Health and Safety Act meaning of worker. The Act notes that this can include an employee, contractor, subcontractor, outworker, apprentice, trainee, student gaining work experience or volunteer. It does not include a member of the Defence Force for this part.

The Act expanded the circumstances in which an employee may request a change in working arrangements. The listed circumstances now include where the employee is the parent of, or has responsibility for the care of, a child who is of school age or younger, is a carer, has a disability, is 55 or older, is experiencing violence from a member of the employee's family, or provides care or support to an immediate family or household member who requires care or support because that person is experiencing family violence.

The legislation also states, for the avoidance of doubt, that an employee who is a parent or has responsibility for the care of a child and is returning to work after leave related to the birth or adoption of the child may request to work part-time to assist with care.

The Act gives examples of what may count as reasonable business grounds for refusing a request. These include that the requested arrangements would be too costly, there is no capacity to change the working arrangements of other employees to accommodate the request, it would be impractical to change other employees' arrangements or recruit new employees, the request would likely result in a significant loss in efficiency or productivity, or it would likely have a significant negative impact on customer service.

On parental leave, the Act changed the concurrent leave rules so that concurrent leave must not be longer than 8 weeks in total. It may be taken in separate periods, but unless the employer agrees, each period must not be shorter than 2 weeks. Unless the employer agrees otherwise, concurrent leave must not start before the date of birth for birth-related leave or the day of placement for adoption-related leave.

The notice rules were also adjusted. The legislation sets out when notice must be given, including at least 10 weeks before starting leave in the usual case, or 4 weeks before starting a later separate period of concurrent leave if that later period is not the first period. If that timing is not practicable, notice must be given as soon as practicable, which may be after the leave has started.

The special maternity leave amendments also make clear in notes that if a female employee has an entitlement to paid personal or carer's leave, she may take that leave instead of unpaid special maternity leave.

From 1 January 2014, the Act required modern awards to include a term dealing with consultation about changes to regular rosters or ordinary hours of work. The required term must oblige the employer to consult employees about the change and allow for employee representation during that consultation.

The term must also require the employer to provide information to employees about the change, invite employees to give their views about the impact of the change, including any impact in relation to family or caring responsibilities, and consider any views given by employees about that impact.

The Act made a matching change for enterprise agreements. A consultation term in an enterprise agreement must require the employer or employers to consult employees about a major workplace change likely to have a significant effect on employees, and also about a change to their regular roster or ordinary hours of work. For roster or hours changes, the term must require the employer to provide information, invite views about the impact, and consider those views.

For businesses, the practical point is that these consultation obligations are tied to modern awards and enterprise agreements. If your workforce is award-covered or agreement-covered, roster changes should not be treated as a purely operational decision with no process. You should check the applicable instrument and follow the consultation term before finalising the change.

The Act replaced the transfer to a safe job provision and added separate paid and unpaid no safe job leave provisions. The transfer rule applies to a pregnant employee if she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated risk period because of illness or risks arising out of her pregnancy, or hazards connected with that position.

If there is an appropriate safe job available, the employer must transfer the employee to that job for the risk period with no other change to the employee's terms and conditions of employment. An appropriate safe job is a safe job with the same ordinary hours as the employee's present position, or a different number of ordinary hours agreed to by the employee. If the employee is transferred, the employer must pay the employee for the safe job at the employee's full rate of pay for the position she held before the transfer, for the hours worked in the risk period.

If there is no appropriate safe job available, the next question is whether the employee is entitled to unpaid parental leave and has complied with the notice and evidence requirements for taking unpaid parental leave. If so, she is entitled to paid no safe job leave for the risk period, paid at her base rate of pay for her ordinary hours of work in the risk period.

If there is no appropriate safe job available and the employee is not entitled to unpaid parental leave, she may instead be entitled to unpaid no safe job leave for the risk period, provided any required evidence of the pregnancy is given. The legislation says an employer may require the evidence to be a medical certificate.

The Act also states that if the pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

From 1 January 2014, the Act inserted Part 6-4B into the Fair Work Act 2009. This allows a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission for an order to stop the bullying.

For this regime, a worker is bullied at work if, while the worker is at work in a constitutionally-covered business, an individual or group repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety. The legislation also makes clear that reasonable management action carried out in a reasonable manner is not covered by this definition.

The Fair Work Commission must start to deal with an application within 14 days after it is made. If the Commission is satisfied that the worker has been bullied at work and there is a risk the worker will continue to be bullied at work by the individual or group, it may make any order it considers appropriate to prevent the worker from being bullied, other than an order requiring payment of a pecuniary amount.

When considering the terms of an order, the Commission must take into account certain matters if it is aware of them, including final or interim outcomes from another investigation, any available grievance or dispute resolution procedure, outcomes from those procedures, and any other relevant matters.

A person to whom a stop bullying order applies must not contravene a term of the order. The legislation identifies that contravention as a civil remedy provision. The Act also says that making a bullying application does not trigger the usual prohibition that would otherwise apply under section 115 of the Work Health and Safety Act 2011 and corresponding WHS laws.

Businesses should read this regime carefully. It is not a general damages claim process. The Commission's role is preventative. The focus is on whether bullying has occurred, whether there is a continuing risk, and what orders are appropriate to stop it continuing.

The Act also amended the modern awards objective from 1 January 2014. The objective now includes the need to provide additional remuneration for employees working overtime, unsocial, irregular or unpredictable hours, weekends or public holidays, or shifts. This amendment matters mainly when reading or reviewing modern awards and award-related pay settings. It does not mean every business can ignore the actual award text and rely only on the objective. Employers still need to check the applicable award terms and any later changes to those awards.

Commencement dates under this Act are split across different schedules. Sections 1 to 3 and some technical and transitional items commenced on Royal Assent, which was 28 June 2013. Schedule 1 Parts 1 to 3, covering special maternity leave, parental leave and flexible working arrangements, commenced on 1 July 2013. Schedule 1 Part 5, covering transfer to a safe job, also commenced on 1 July 2013. Schedule 1 Part 4, covering consultation about changes to rosters or working hours, commenced on 1 January 2014. Schedule 2, the modern awards objective amendment, commenced on 1 January 2014. Schedule 3, the anti-bullying measure, commenced on 1 January 2014. Schedule 3A, dealing with conferences, commenced on 1 July 2013.

Before relying on this page, a business should check the current Fair Work Act 2009, the applicable modern award or enterprise agreement, and whether later amendments have changed the position. This page explains the 2013 amending Act and its practical effect, but day to day compliance should always be checked against the current law and the instruments that apply to your workforce.