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Fair Work Amendment (Tackling Job Insecurity) Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Fair Work Amendment (Tackling Job Insecurity) Bill 2018

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Adam Bandt MP



Fair Work Amendment (Tackling Job Insecurity) Bill 2018

 

 

OUTLINE

 

The Fair Work Amendment (Tackling Job Insecurity) Bill 2018 amends the Fair Work Act 2009 to provide for a process for ‘insecure’ workers to move to ongoing employment on a part-time or full-time basis.

 

An employee who is a casual or rolling contract employee can ask their employer to move to secure employment. An eligible employee or their union must make a secure employment arrangement with their employer in writing. The employer must give the employee or their union a written response to the request within 21 days. If the employer refuses the request, the written response must include the reason for the refusal.

If an employer refuses a request for ongoing employment an application can be made to Fair Work Commission to issue a ‘secure employment order’ to provide or maintain secure employment arrangements. This application can be made by an eligible individual, a union or other defined bodies on their behalf.

Separately, unions are able to make applications to the Fair Work commission independently of any employee request for orders regulating the use of insecure work in particular workplaces, industries or for particular kinds of work.

When considering applications for secure employment orders, the Fair Work Commission must give regard to the presumption that all employees have the right to be ongoing employees unless there are serious countervailing business reasons relating to the specific needs of an employer’s business.

 

Genuine short-term casuals employed by small business (up to 3 months at a time) will be exempt. This will allow small business to engage casual employees for seasonal work or for busy periods, for example. However, if the Fair Work Commission considers that a small business is misusing this exemption by, for example, repeatedly ‘churning’ multiple employees through successive 3 month engagements instead of engaging a single ongoing employee, the Commission has the power to regulate the use of exempt casuals. 

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.     This clause provides for the Act to be cited as the Fair Work Amendment (Tackling Job Insecurity) Act 2018

 

Clause 2: Commencement

 

2.     This clause state the whole of this Act will commence on the day after it receives the Royal Assent.

 

 

Clause 3: Schedules

 

3.     This clause gives effect to the Schedules. It provides that legislation that is specified in a Schedule to this Act is amended or repeal as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 - Amendments of the Fair Work Act 2009

 

 

Item 1: After paragraph 5(8)(a)

 

Amends paragraph 5(8)(a) to include reference to a secure employment order in other terms and conditions of employment for national system employees.

 

Item 2: Section 12

 

Inserts rolling contract basis into the Dictionary and includes a reference to the new section 21A which provides a definition.

 

Item 3: Section 12

 

Inserts rolling contract employee into the Dictionary and includes a reference to the new section 21A which provides a definition.

 

Item 4: Section 12

 

Inserts definition of secure employment arrangement into the Dictionary and defines it as ongoing employment on a part-time or full-time basis.

 

Item 5: Section 12

 

Inserts secure employment order into the Dictionary and includes a reference to the new subsection 306E(1) which provides a definition.

 

Item 6: Section 12

 

Inserts definition of small business exempt casual into the Dictionary; A casual employee is a small business exempt casual if:

(a)   The employer is a small business employer (as defined in existing section 23); and

(b)   The employee has been employed by the employer for a period of less than 3 months; and

(c)   The employee has not been employed by the employer at any time in the 3 months prior to the period of employment referred to in paragraph (b) commencing.

 

Item 7: After section 21

 

Inserts a new section 21A which defines rolling contract employee and rolling contract basis.

 

An employee is employed on a rolling contract basis if;

(a)   The contract of employment ends on a specified date or at the end of a specified period; and

(b)   The employee has previously been employed by the employer under such a contract; and

(c)   The current and previous contracts relate to the same kind of work.

 

A rolling contract employee is an employee who is employed on a rolling contract basis.

 

 

Item 8: After paragraph 43(2)(a)

 

Inserts a new subparagraph 43(2)(ab) which adds a secure employment order as one of the instruments that can specify terms and conditions of employment and includes a reference to the new Part 2-7A which provides for secure employment arrangements.

 

Item 9: After paragraph 172(1)(c)

 

Inserts a new 172(1)(ca) to allow for matters pertaining to secure employment arrangements, including moving from casual employment, or from employment on a rolling contract basis, to secure employment arrangements to be permitted matters for the making of enterprise agreements.

 

Item 10: After Part 2-7

 

Inserts a new part - Part 2-7A - Secure employment arrangements, which deals with requests for secure employment arrangements and secure employment orders.

 

Division 1 contains the introduction which consists of section 306A which provides a guide to the new Part 2-7A and 306B which defines employee as a national system employee, and employer as a national system employer.

 

Division 2 deals with requests for secure employment arrangements.

 

New subsection 306C sets out the process for requests to change from casual employment to secure employment arrangements. A casual employee may make a request in writing for a secure employment arrangement with their employer. A written request may also be made by an employee organisation that is entitled to represent casual employees if asked to do so by one or more of those employees.

 

The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request. If a request is refused the employer’s written response must include details of the reason for the refusal. This section does not apply in relation to a small business exempt casual.

 

New subsection 306D sets out the process for requests to change from employment on rolling contract basis to secure employment arrangements. A rolling contract employee may make a request in writing for a secure employment arrangement with their employer. A written request may also be made by an employee organisation that is entitled to represent rolling contract employees if asked to do so by one or more of those employees.

 

Division 3 deals with secure employment orders.

 

New subsection 306E gives the Fair Work Commission (FWC) the power to make a secure employment order.

 

If FWC receives an application in accordance with section 306F it may make a secure employment order it considers appropriate to provide, or to maintain, secure employment arrangements for the person or persons to whom the order will apply.

 

The order may apply to any one of the following persons (a relevant person )

(i)             A casual employee;

(ii)            A rolling contract employee;

(iii)           A prospective employee who, if employed at the time the application for the order was made, would be a casual employee or rolling contract employee;

(iv)          An employee who already has a secure employment arrangements;

(v)           A prospective employee who, if employed at the time the application for the order was made, would have a secure employment arrangement; or

The order may also apply to two or more relevant persons; or a class of relevant persons.

The class may be described by reference to a particular industry or part of an industry, a particular kind of work, a particular type of employment or a particular employer.

A secure employment order must specify the employer or employers who are required to comply with the order and cannot apply to a small business exempt casual, except where the Fair Work Commission considers small business exempt casuals are being engaged for reasons unconnected with the business’ genuine operational needs.

New subsection 306F sets out who can make an application for a secure employment order.

In relation to a request refused under section 306C or 306D, the application may be made by the employee if they made the request or an organisation that is entitled to represent the interests of the employee, if requested by the employee to do so. The Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner may also make an application.

Where an organisation has made the request the organisation may then make an application the FWC for a secure employment order.

An application for a secure employment order that is not in relation to a request refused under section 306C or 306D may be made by an organisation that is entitled to represent the interests of the relevant persons who the order will apply.

New subsection 306G sets out the matters the FWC must consider when deciding on whether to make a secure employment order and the terms of the order.

The FWC must have regard to the presumption that all employees have the right to be ongoing employees unless there are serious countervailing business reasons relating to the specific needs of an employer’s business.

If the application was made under subsection 306F(2) then the FWC must have regard to whether the order should apply to the same employees and prospective employees, and require the same employers to comply with it, as are covered by a relevant modern award.

The FWC may also consider any other matter it considers relevant.

New subsection 306H sets out the content of secure employment orders affecting more than one person. Orders providing or maintaining secure employment arrangements for more than one relevant person may include one or more of the following;

(a)   An order requiring that all the relevant persons who are long term casual employees or rolling contract employees be offered or be subject to a secure employment arrangement;

(b)   An order providing for a process by which all the relevant persons who have been employed by the employer for a certain period of time can elect to or be subject to a secure employment arrangement;

(c)   An order specifying the terms of secure employment arrangements under which casual loadings would be phased out over a period of time so as to avoid a drop in employee remuneration;

(d)   An order implementing secure employment arrangements in such stages (as provided in the order) as the FWC thinks appropriate;

(e)   An order requiring the employer to provide information to the FWC for the purposes of monitoring the staged implementation of secure employment arrangements;

(f)    An order regulating the engagement of prospective employees on a casual basis, a rolling contract basis or a secure employment basis;

(g)   An order regulating the engagement of employees currently employed on a fixed-term contract basis, where such employees may in the future becoming rolling contract employees;

(h)   An order regulating the employer’s use of arrangements that are not secure work arrangements in circumstances in which secure work arrangements could be used.

However the FWC is not limited to the above instances in the orders it can make under section 306R.

New subsection 306J provides that a secure employment order may be implemented in stages (as provided in the order) as the FWC thinks appropriate.

New subsection 306K establishes that an employer must not contravene a secure employment order. This is a civil remedy provision as provided for in Part 4-1.

New subsection 306L deals with an inconsistency between a secure employment order and modern awards or enterprise agreements. A term of a modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a secure employment order that applied to the employee.

Item 11: Subsection 539(2) (after table item 9)

Inserts a new item 9A into the table in subsection 539(2) which sets out the standing, jurisdiction and maximum penalties for breaching a secure employment order.

Standing is given to a person to whom a secure employment order applies or an organisation entitled to represent a person to whom a secure employment order applies. The Federal Court, the Federal Circuit Court or an eligible State or Territory court have jurisdiction. Contravention of a secure employment order is a serious contravention and the maximum penalty is 600 penalty units, or otherwise 60 penalty units. This is consistent with the treatment of contraventions of national minimum wage orders and equal remuneration orders.

Item 12: After paragraph 557(2)(f)

Inserts a new paragraph 557(2)(fa) to provide that section 306K which deals with contraventions of secure employment orders is one of the civil remedy provisions listed in 557(2).

Item 13: After paragraph 557C(3)(f)

Inserts a new paragraph 557C(3)(fa) to provide that section 306K which deals with contraventions of secure employment orders is one of the civil remedy provisions listed in 557C(3). This is consistent with national minimum wage orders and equal remuneration orders.

Item 14: After paragraph 558B(7)(f)

Inserts a new paragraph 558B(7)(fa) to provide that section 306K which deals with contraventions of secure employment orders is one of the civil remedy provisions listed in 558B(7). This is consistent with national minimum wage orders and equal remuneration orders.

Item 15: After paragraph 576(1)(f)

Inserts a new paragraph 576(1)(fa) which give the FWC functions in relation to secure employment arrangements as set out in new Part 2-7A.

Item 16: After paragraph 653(1)(c)

Inserts a new paragraph 653(1)(ca) which requires the General Manager of the FWC to conduct research into the operation of new Part 2-7A in relation to requests for secure employment arrangements.

Item 17: Subparagraph 653(1)(d)(i)

Repeals section 653(1)(d)(i) and inserts a new provision requiring the General Manager of the FWC to conduct research into the circumstances in which requests for flexible working arrangements, requests for extensions of unpaid parental and requests for secure employment arrangements are made.

Item 18: After paragraph 675(2)(e)

Inserts a new paragraph 675(2)(ea) which provides that a contravention of a secure employment order is not a criminal offence.

Item 19: At the end of subsection 716(1)

Inserts a new paragraph 716(1)(g) which gives Fair Work Inspectors powers to issue a notice if they reasonable believe that person has contravened a secure employment order. The notice may require a specific action to remedy the direct effects of the contravention and require them to produce reasonable evidence of their compliance with the notice.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Fair Work Amendment (Tackling Job Insecurity) Bill 2018

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the bill

 

The Fair Work Amendment (Tackling Job Insecurity) Bill 2018 amends the Fair Work Act 2009 to provide for a process for ‘insecure’ workers to move to ongoing employment on a part-time or full-time basis.

 

An employee who is a casual or rolling contract employee can ask their employer to move to secure employment.

If an employer refuses a request for ongoing employment an application can be made to Fair Work Commission to issue a ‘secure employment order’ to provide or maintain secure employment arrangements. The Fair Work Commission must give regard to the right of all employees to be ongoing employees unless there are serious countervailing business reasons relating to the specific needs of an employer’s business.

 

Genuine short-term casuals employed by small business during seasonal work (up to 3 months at a time) will be exempt.

 

 

 

Human rights implications

 

This Bill positively engages the following applicable rights or freedoms:

Article 7(d) of the International Covenant on Economic, Social and Cultural Rights which states that:

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays  with pay, as well as remuneration for public holidays.

The Bill promotes the right of workers to have greater access to ongoing employment with paid leave entitlements.

Article 11(c) & (e) of the Convention on the Elimination of All Forms of Discrimination Against Women which states that:

States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

Women are more likely to be in insecure employment than men - in 2016 27% of female employees aged 15 and over do not have paid leave entitlements compared to 23% of male employees [1] - the Bill will help to address this by giving women greater access to secure jobs with paid leave entitlements.

 

Conclusion

 

This bill is compatible with human rights because it advances the protection of human rights.

 

 

Adam Bandt MP

 




[1] ABS, Gender Indicators, Australia, September 2017