LEGAL ALERT: Award Reviews axed, Enterprise Agreement rules relaxed and unpaid domestic violence leave included in the NES

This week, Federal Parliament has passed legislation to:

  • respond to two recommendations of the Productivity Commission’s 2015 Final Report into the Workplace Relation Framework; and
  • introduce unpaid domestic violence leave into the National Employment Standards in the Fair Work Act 2009.

Productivity Commission’s recommendations

The first change will remove the requirement for the Fair Work Commission to conduct four-yearly reviews of modern awards, a change supported by both employer groups and unions.  Previously the Commission was required to conduct four-yearly reviews of modern awards.

Industrial Relations Minister, Kelly O’Dwyer has welcomed the changes as they allow for a more sensible “as-needs” approach to reviewing modern awards. The Commission will still have power under the Act to vary awards if it deems it necessary or on application.

Importantly, the second and long overdue change will provide discretion for the Commission to approve enterprise agreements, despite minor technical errors, so long as those errors do not disadvantage employees. This amendment is intended to speed up the approval process, see more enterprise agreements approved and provide better certainty of arrangements at the workplace level.

Technical and procedural errors have plagued the approval process and many of the benefits of agreement making, particularly in relation to the form of the required Notice of Employee Representational Rights.

For employers awaiting Commission approval of enterprise agreements, these changes are retrospective and will take effect from 1 January this year (2018).

Domestic violence leave enshrined in National Employment Standards

The National Employment Standards have been amended to include a right for workers to take up to five days of unpaid family and domestic violence leave per year, based on the clause inserted into modern awards by the Commission earlier this year.

In summary, the leave:

  • Can be accessed by all employees, including casuals;
  • Does not accrue depending on service. It is available in full at the start of each 12 month period of an employee’s employment;
  • Does not accumulate from year to year;
  • Will be available in full to part-time and casual employees (i.e. not pro-rated);
  • Does not count as service, but does not break an employee’s continuous service;
  • Contains notice and evidence requirements – an employee is required to provide their employer with notice of taking the leave and an employer may request evidence to support the taking of the leave;
  • Imposes confidentiality obligations on employers.

These changes have been endorsed by both sides of Parliament and Industrial Relations Minister, Kelly O’Dwyer has said that the changes “will enshrine a minimum standard for family and domestic violence leave to all Australians covered by the Fair Work Act.”

Implications for employers

Employers should:

  • update their leave policies and procedures to reflect this new entitlement; and
  • be aware that domestic violence leave will now become a ‘workplace right’ for the purposes of the general protections in the Act and that ‘adverse action’ must not be taken against an employee in relation to this ‘workplace right’.

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