Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016

The Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016 amends the Fair Work Act 2009. Its focus is narrow and practical. It is aimed at stopping enterprise agreement terms from interfering with how certain emergency management bodies manage and work with volunteers.

The amendments do this in two main ways. First, they add a new category of unlawful term called an objectionable emergency management term. Second, they give certain volunteer bodies a right to make submissions to the Fair Work Commission in matters that affect, or could affect, volunteers of a designated emergency management body.

This is not a general workplace law change for every employer. The key question is whether an employer covered by the agreement is a designated emergency management body. If not, these amendments will usually not be the main issue.

The Act is directed at designated emergency management bodies. Under the amended Fair Work Act, a body is a designated emergency management body if two elements are met.

First, the body must either be, or be part of, a fire-fighting body or a State Emergency Service of a State or Territory, however described. Alternatively, it can be a recognised emergency management body that is prescribed by regulations for this purpose.

Second, the body must be, or be part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

The legislation also says that a body is not a designated emergency management body if it is, or is part of a body that is, prescribed by regulations for exclusion.

In practice, this means the amendments are not aimed at ordinary private sector employers just because they employ volunteers or support community emergency work. The trigger is much narrower. The agreement must cover an employer that is a designated emergency management body.

The legislation sets out two pathways.

Some bodies are captured by their nature. If the body is, or is part of, a fire-fighting body or a State Emergency Service of a State or Territory, and it is established for a public purpose under law, it can fall within the definition without needing a separate regulation naming it.

Other bodies are only captured if they are recognised emergency management bodies prescribed by regulations for that purpose. So being involved in emergency management is not enough by itself. There must also be a regulation prescribing the body, and the public purpose requirement must still be met.

This distinction matters when reviewing an agreement. If the employer is not clearly a fire-fighting body or SES body, you should not assume the Act applies. You need to verify whether regulations prescribe the body and whether any regulations exclude it.

The main trigger point is an enterprise agreement that covers an employer which is a designated emergency management body. If that agreement contains a term with one of the prohibited effects, the term can be an objectionable emergency management term.

The amendments also affect workplace determinations through the application provisions and the submission rights given to volunteer bodies in Fair Work Commission matters.

Another practical trigger point is bargaining or agreement drafting. If a proposed clause deals with volunteers, emergency operations, support or equipment for volunteers, recognition of volunteers, or consultation before operational decisions involving volunteers, it should be checked carefully against the statutory definition.

A term of an enterprise agreement is objectionable if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, one or more specified effects.

Those effects include restricting or limiting the body’s ability to engage or deploy volunteers, provide support or equipment to volunteers, manage its relationship with or work with any recognised emergency management body in relation to volunteers, or otherwise manage its operations in relation to volunteers.

A term is also objectionable if it requires the body to consult, or reach agreement with, another person or body before taking action for those purposes. The legislation separately captures terms that restrict or limit the body’s ability to recognise, value, respect or promote the contribution of volunteers to the well-being and safety of the community.

There is also a State and Territory law limb. A term is objectionable if it requires or permits the body to act other than in accordance with a State or Territory law, so far as that law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

The legislation makes clear that these categories do not limit each other. A clause can be objectionable in more than one way.

Not every consultation clause is prohibited. The Act specifically says a term is not objectionable if it provides for the matters required by the Fair Work Act consultation provisions and does not provide for anything else that has, or is likely to have, one of the prohibited effects.

The model consultation term is also expressly excluded from being an objectionable emergency management term.

That means the issue is not consultation in itself. The issue is whether the clause goes further and interferes with volunteer-related operational decisions in a way the legislation prohibits.

The legislation also contains a limited application rule for certain terms dealing with directions to perform work or not perform work in relation to essential services or situations of emergency, where applying the provision would otherwise go beyond Commonwealth legislative power to that extent.

If you are dealing with an enterprise agreement for a designated emergency management body, the practical task is to identify clauses that touch volunteers and test them against the statutory wording. The legislation does not create a broad new compliance program for all employers. It creates a targeted rule about what cannot appear in, or operate through, an agreement covering these bodies.

Start with clauses about deployment, rostering, emergency response, support, equipment, recognition programs, consultation before operational decisions, and any clause that interacts with State or Territory emergency management laws. Then ask whether the clause has, or is likely to have, one of the prohibited effects.

If an agreement was approved before commencement, the amendments still matter. The legislation says the amended Act applies after commencement to agreements approved before or after commencement. For older agreements, a term continues to have effect only to the extent it can operate consistently with the amended Act and within Commonwealth legislative power.

The amendments also create a submission right for certain volunteer bodies in Fair Work Commission matters under the relevant Parts of the Fair Work Act. A body is entitled to make a submission for consideration if the matter affects, or could affect, the volunteers of a designated emergency management body.

The bodies covered include a body corporate that has a history of representing the interests of the designated emergency management body’s volunteers, provided it is not excluded by regulations. Regulations can also prescribe other bodies for this purpose.

This entitlement applies whether or not the Fair Work Commission holds a hearing. The same approach was inserted for the relevant enterprise agreement and workplace determination provisions.

The Act received Royal Assent on 12 October 2016 and commenced on 13 October 2016, being the day after Royal Assent.

The application provisions state that the amended Fair Work Act applies after commencement in relation to enterprise agreements approved, and workplace determinations made, before or after commencement. The submission rights for volunteer bodies also apply to matters before the Fair Work Commission on or after commencement, even if the matter was already before the Commission before commencement.

For pre-commencement enterprise agreements, a term has effect after commencement only to the extent it can operate in accordance with the amended Act and within Commonwealth legislative power.

Because the Act relies partly on regulations, the most important practical check is whether the body is prescribed or excluded by regulations. The text of the Act gives the framework, but the regulations may determine whether a particular recognised emergency management body is in or out.

You should also check the actual enterprise agreement wording rather than relying on labels. A clause may be objectionable because of its effect, or likely effect, even if it is framed as a consultation, operational or recognition clause.

Finally, if a clause interacts with State or Territory law, compare the agreement wording with the relevant law carefully. One limb of the definition turns directly on whether the term requires or permits conduct other than in accordance with that law where volunteers are affected or could be affected.

This page is based on the text of the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016 as published on the Federal Register of Legislation. The amendments insert definitions and operative provisions into the Fair Work Act 2009, including the definition of objectionable emergency management term, the definition of designated emergency management body, submission rights for certain volunteer bodies, and application provisions covering agreements and determinations before and after commencement.