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Fair Work Amendment (Better Work/Life Balance) Bill 2012

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2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Fair Work Amendment (BETTER WORK/LIFE BALANCE) Bill 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

Circulated by the authority of Adam Bandt

 

 

 

 

 

 

 

 

 



 

 

Fair Work Amendment (BETTER WORK/LIFE BALANCE) Bill 2012

 

 

 

 

OUTLINE

 

 

The Fair Work Amendment (Better Work/Life Balance) Bill 2012 amends the Fair Work Act 2009.

 

 

The Bill deals with the right to request flexible working arrangements to help employees to achieve a better work/life balance. The Bill extends the right to request flexible working arrangements to all employees. In addition, the right to request would be strengthened for those employees with caring responsibilities.

 

 

 

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

The Bill's provisions are to commence the day after the Bill receives Royal Assent

 

Clause 3 - Schedules

 

This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.



 

Schedule 1—Amendments to the Fair Work Act 2009

 

Item 1 amends the existing 5(8)(a) to provide that flexible working arrangements orders can be made for national system employees who are covered by the National Employment Standards.

 

Item 2 inserts flexible working arrangements orders into the Dictionary.

 

Item 3 changes “and to “or” at the end of 43(2)(a)(ii).

 

Item 4 adds flexible working arrangements orders to the other t erms and conditions of employment provided under the Fair Work Act.

 

Item 5 removes the reference to section 65(5) in relation to contravening the National Employment Standards.

 

Item 6 updates note 1 in subsection 44(2) to reflect the removal of section 65(5).

 

Item 7 removes the reference to section 65(5) in Note 2 in subsection 44(2).

 

Item 8 repeals Division 4 of Part 2-2 which contains the existing provisions regarding requests for flexible working arrangements.

 

Item 9 removes the reference to section 65(5) in the note in section 146.

 

Item 10 inserts flexible working arrangements as a permitted matter in the making of an enterprise agreement in section 172(1).

 

Item 11 removes the reference to section 65(5) in notes 1 and 2 in section 186(6).

 

Item 12 inserts a new Part 2 7A regarding flexible working arrangements.

 

Division 1 gives an introduction to Part 2-7A.

 

Section 306A gives a guide to Part 2-7A—Flexible working arrangements.

 

Section 306B defines employee as a national system employee and employer as a national system employer.

 

306C (1) provides that State or Territory laws that provide employee entitlements in relation to flexible working arrangements are not excluded to the extent that they are more beneficial to employees than the entitlements under Part 2-7A.

 

306C (2) provides that a law of a State or Territory has no effect in relation to an employee to the extent that it provides an employee entitlement in relation to flexible working arrangements that is inconsistent with a term of an enterprise agreement that applies to the employee.

 

Division 2 sets out the process for requesting flexible working arrangements.

 

Section 306D sets out the process for requesting flexible working arrangements for all employees who meet certain criteria regarding their employment status.

 

Employees or organisations entitled to represent them may request the employer change the employee’s hours of work, patterns of work and location of work. A request can only be made if an employee has at least 12 months of continuous service with the employer. A long term casual employee can make a request if they have a reasonable expectation of continuing employment on a regular and systematic basis.

 

A request must be in writing and set out details of the changes being requested and the reasons for the changes. The employer must respond within 21 days stating whether they grant or refuse the request. The employer may only refuse the request on reasonable business grounds and must include details of the reasons for the refusal in the written response.

 

Section 306E sets out the process for requesting flexible working arrangements for employees with caring responsibilities who meet certain criteria regarding their employment status.

 

An employee who has responsibility for the care of another person or organisations entitled to represent them may request the employer change the employee’s hours of work, patterns of work and location of work. A request can only be made if an employee has at least 12 months of continuous service with the employer. A long term casual employee who has responsibility for the care of another person can make a request if they have a reasonable expectation of continuing employment on a regular and systematic basis.

 

A request must be in writing and set out details of the changes being requested and the reasons for the changes. The employer must respond within 21 days stating whether they grant or refuse the request. The employer may only refuse the request on serious countervailing business grounds and must include details of the reasons for the refusal in the written response.

 

Division 3 sets out the arrangements for flexible working arrangements orders.

 

Section 306F gives Fair Work Australia the power to make flexible working arrangements orders it considers appropriate to ensure compliance with section 306D or 306E and defines who may apply for a flexible working arrangements order. Fair Work Australia may make a flexible working arrangements order only on application from an employee or employee organisation whose request has been refused, or the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner.

 

Section 306G allows Fair Work Australia to order changed working arrangements to be implemented in stages as Fair Work Australia thinks appropriate.

 

Section 306H provides that an employer must not contravene a term of a flexible working arrangements order and makes a breach subject to civil remedy provisions.

 

306I sets out the relationship between working arrangements orders, modern awards and enterprise agreements. A term of a modern award has no effect if it is less beneficial to the employee than a term of a flexible working arrangements order. A term of a flexible working arrangements order has no effect in relation to an employee to the extent that it is inconsistent with a term of an enterprise agreement that applies to the employee.

 

Item 13 inserts a new table item after item 9 in subsection 539(2) that sets out the standing, jurisdiction and maximum penalties that apply for a breach of a working arrangements order.

 

Item 14 removes the reference to section 65(5) in note 4 in section 545(1).

 

Item 15 inserts a new section after paragraph 557(2)(f) that defines a flexible working arrangements orders for the purposes of section 557. This allows two or more contraventions of a flexible working arrangements orders to constitute a single contravention if the contraventions are committed by the same person; and the contraventions arose out of a course of conduct by the person.

 

Item 16 inserts a new paragraph 576(1)(fa) that gives Fair Work Australia functions in relation to flexible working arrangements.

 

Item 17 inserts a new paragraph 653(1)(c) and 653(1)(ca). These paragraphs require the General Manager of Fair Work Australia to conduct research into the operation of Part 2-7A in relation to requests for changed working arrangements.

 

Item 18 inserts a new paragraph 675(2)(ea) that makes it clear a breach of a flexible working arrangements order is not a criminal offence.

 

Item 19 inserts a new subsection 716(1)(g) that allows a Fair Work Australia inspector to issue a compliance notices in relation to a term of a flexible working arrangements order.

 

Item 20 removes the reference to section 65(5) in section 739(2) that deals with disputes that cannot be heard by Fair Work Australia.

 

Item 21 removes the reference to section 65(5) in the note in section 739(2).

 

Item 22 removes the reference to section 65(5) in section 740(2).

 

Item 23 removes the reference to section 65(5) in the note in section 740(2).