Fair Work Amendment Act 2015

The Fair Work Amendment Act 2015 amended the Fair Work Act 2009 in four main areas covered here: extension of unpaid parental leave, greenfields agreements, protected action ballot orders, and unclaimed money. It also included application and transitional rules and required an independent review of the greenfields amendments.

For most businesses, the practical effect is procedural. The Act changed what steps must be taken before an employer refuses a parental leave extension request, how long greenfields bargaining can run before an employer may seek approval without union signatures, when protected industrial action processes can begin, and how interest is handled when unclaimed employee money is later paid out.

These are not changes that only affect large employers. Any business with employees may need to deal with parental leave requests or unclaimed amounts. Businesses in construction, infrastructure, resources and other project-based sectors are more likely to be directly affected by the greenfields changes.

This Act amends the Fair Work Act 2009, so it matters where your issue sits within that framework. In scope are employers and workplace participants dealing with the specific topics changed by the Act, including unpaid parental leave extension requests, proposed single-enterprise greenfields agreements, protected action ballot order applications, and unclaimed employee amounts paid to the Commonwealth.

In practical terms, employers are most likely to be affected if they have employees requesting extended unpaid parental leave, are bargaining for a new project or new enterprise using a greenfields agreement, are involved in enterprise bargaining where protected industrial action may be sought, or have payroll situations involving unclaimed employee money.

Businesses are usually not directly affected by every part of this Act at once. For example, a business with no current bargaining activity may only need to focus on parental leave and payroll processes. A project-based employer may be heavily affected by the greenfields provisions but never deal with unclaimed money. The key is to match the amendment to the actual workplace event you are dealing with.

The Act inserted a new rule into the unpaid parental leave extension process. An employer must not refuse an employee's request to extend the period of unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request.

This is a practical process requirement. It means a refusal should not be treated as a paper-only exercise. Before saying no, the employer needs to give the employee a real chance to discuss the request. The legislation does not prescribe a single format for that discussion, so businesses should focus on whether the opportunity was genuine and reasonable in the circumstances.

In practice, that usually means arranging a conversation, inviting the employee to explain the request, considering operational issues, and keeping a record of what occurred. The amendment does not say that every request must be approved. It says the employer cannot refuse unless the employee has first had a reasonable opportunity to discuss it.

The transitional rule is important. This amendment applies in relation to a request made after the commencement of Part 1, which was 27 November 2015. Older requests are generally dealt with under the earlier position. So if you are reviewing an old dispute or a long-running matter, the date of the request is the key trigger point.

The Act made substantial changes to proposed single-enterprise agreements that are greenfields agreements. It set out who can be bargaining representatives, created a formal notified negotiation period, allowed an employer application pathway after that period ends, and limited some bargaining mechanisms once the period has expired.

For a proposed single-enterprise greenfields agreement, the bargaining representatives include an employer that will be covered by the agreement, an employee organisation that is entitled to represent the industrial interests of one or more employees who will be covered in relation to the work and with which the employer agrees to bargain, and a written appointee acting as bargaining representative for the employer.

The notified negotiation period is central. An employer bargaining representative may give written notice to each employee organisation bargaining representative stating that the period of 6 months beginning on a specified day is the notified negotiation period for the agreement. The specified day must be later than the day notice is given, or if there are 2 or more employee organisations, later than the last day notice is given to any of them. If there are multiple employers bargaining for the agreement, the notice has no effect unless the other employer or employers agree to the giving of the notice.

If the agreement has not otherwise been made, there has been a notified negotiation period, that period has ended, each employee organisation bargaining representative was given a reasonable opportunity to sign the agreement, and the relevant employer or employers apply to the Fair Work Commission for approval, the agreement is taken to have been made when the application is made. The application must be accompanied by a copy of the agreement and any declarations required by the procedural rules.

The Fair Work Commission must be satisfied that a greenfields agreement made in this way, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work. The Act notes that the Commission may have regard to prevailing pay and conditions in the relevant geographical area.

The Act also limits some bargaining-related processes after the notified negotiation period ends. After that point, the good faith bargaining requirements, bargaining orders, serious breach declaration provisions and bargaining dispute provisions listed in section 255A do not apply in relation to the agreement, and any bargaining order relating to the agreement ceases to have effect. The bargaining related workplace determination provision in section 269 also does not apply after the notified negotiation period ends because of section 271A.

These changes generally apply prospectively. The transitional rule says the amendments concerning proposed enterprise agreements apply if an employer agrees to bargain for the proposed enterprise agreement after 27 November 2015. That means the key date is when an employer agrees to bargain, not simply when the project starts or when negotiations later become difficult.

The Act amended the protected action ballot order provisions by inserting a new requirement into section 437. An application for a protected action ballot order cannot be made unless there has been a notification time in relation to the proposed enterprise agreement.

The note accompanying the amendment makes the practical point clear: protected industrial action cannot be taken until after bargaining has commenced, including where the scope of the proposed enterprise agreement is the only matter in dispute.

For employers, this means timing matters. If a business is entering bargaining, it should keep clear records of when bargaining has formally reached the notification time stage. If there is a dispute about whether industrial action can be pursued, the sequence of events will be important.

The transitional rule says this amendment applies in relation to an application under section 437 if the application was made after 27 November 2015. That is another example of the Act operating prospectively rather than rewriting earlier applications.

The Act amended the unclaimed money provisions in section 559 by inserting a new interest rule. If an amount is paid to a person under subsection 559(3), the amount is at least $100, and the amount is attributable to an amount that was paid to the Commonwealth under subsection 559(1) more than 6 months before that time, the Fair Work Ombudsman, on behalf of the Commonwealth, must also pay the person the amount of interest, if any, worked out under a Ministerial instrument.

The Minister may make an instrument for this purpose, and the instrument may involve different rates of interest for different periods, including a nil rate. That means businesses should not assume a fixed rate. The applicable instrument needs to be checked at the time.

The payment flow is important. The interest is paid to the person by the Commonwealth through the Fair Work Ombudsman. Businesses should not read the amendment as meaning the employee claims interest directly from the employer under this subsection. At the same time, employers still need to understand the broader unclaimed money framework because if the money is returned after 6 months the employer may need to pay that interest to the Commonwealth.

The transitional rule is narrow and date-based. Paragraph 559(3A)(c) applies in relation to an amount that was paid to the Commonwealth under subsection 559(1) after the commencement of Part 10, which was 1 January 2016. So the key date is when the amount was paid to the Commonwealth, not simply when the employee later receives payment.

For payroll and finance teams, the practical issue is record keeping. You need to know the amount, the date it was paid to the Commonwealth, whether it was at least $100, and whether more than 6 months had passed before the later payment out.

The Act received Royal Assent on 26 November 2015. Sections 1 to 3 commenced on that day. The unpaid parental leave amendments in Schedule 1 Part 1, the greenfields amendments in Part 5, the protected action ballot order amendments in Part 7, and the application and transitional provisions in Schedule 2 commenced on 27 November 2015. The unclaimed money amendments in Part 10 commenced on 1 January 2016.

The Act also required an independent review of the operation of the amendments made by Part 5 of Schedule 1, being the greenfields amendments. The review had to be undertaken and completed within 2 years after the commencement of that Part. The review had to consider the effect of those amendments and any other related matter specified by the Minister. The reviewer had to provide a written report to the Minister, and the Minister had to table the report in each House of Parliament within 15 sitting days of receiving it.

For businesses reading this page now, the main status point is that these amendments are in force. But before relying on this page for a live workplace issue, check three things: first, whether your matter falls within the Fair Work Act framework; second, the exact date the relevant request, bargaining step, application or payment occurred; and third, whether any current procedural rules or legislative instruments affect how the amended provisions operate in practice.

The transitional provisions are short but important. They show that the amendments generally apply prospectively rather than retrospectively.

For unpaid parental leave, the new discussion requirement applies to requests made after 27 November 2015. For greenfields agreements, the amendments apply in relation to a proposed enterprise agreement if an employer agrees to bargain for it after 27 November 2015. For protected action ballot orders, the amendment applies to applications made after 27 November 2015. For unclaimed money interest, the rule applies where the amount was paid to the Commonwealth after 1 January 2016.

That means businesses should not assume the amended process applies just because a dispute, bargaining process or payment continued after commencement. The trigger is tied to the specific event identified in the transitional rule. If your matter sits around the commencement dates, verify the exact trigger event and keep documents showing when it occurred.

This page is based on the Federal Register of Legislation version of the Fair Work Amendment Act 2015. The Act amends the Fair Work Act 2009 and should be read with that Act, any applicable procedural rules, and any Ministerial instrument dealing with interest for unclaimed money.

If you are dealing with a current bargaining process, a parental leave dispute, or an unclaimed money issue, check the current text of the Fair Work Act 2009 and any related instruments before acting.