Thinking | 2 December 2013
The Working Paper Issue 13
Employers to consult over more than major workplace change
From 1 January 2014, employers will need to ‘genuinely consult’ with employees about changes to their regular roster or ordinary hours of work.
The new obligation is a result of amendments to the Fair Work Act 2009 (Cth) (Act) (amendments) which provide that all modern awards and enterprise agreements made and approved on or after 1 January 2014 must include a term requiring the consultation.
The new provisions form part of the ‘Family Friendly Measures’ in the Act and are intended to encourage discussion between employers and employees. Genuine consultation will require employers to consider the impact of proposed changes on employees, including their family and caring responsibilities.
Obligation to consult
Under the amendments, the new consultation terms must require an employer who proposes a change to an employee’s regular roster or ordinary hours of work to:
- provide information to the employee about the proposed change;
- invite the employee to provide their views about how the changes will affect them (including in relation to family and carer responsibilities); and
- consider any views about the impact of the changes given by the employee.
The term must also allow employees to be represented in consultation, for example by an elected employee or representative from an employee organisation.
Importantly, the amendments do not require the employer to reach any agreement with an employee provided they engage in genuine consultation and properly consider the employee’s position.
‘Regular roster’ is not defined in the Act, however the explanatory memorandum to the amendments provides that there will be no obligation to consult with an employee who has irregular, sporadic or unpredictable hours. The obligation will, however, apply in circumstances where an employee has an understanding or reliance on systematic or regular hours, irrespective of whether or not the employee is a casual employee.
If an employer fails to comply with a consultation term, it will be in breach of the relevant modern award or enterprise agreement. Breaches may be enforced by application to an eligible State or Territory Court and attract civil penalties of $51,000 for a body corporate.
What will the consultation terms look like?
Modern award term
On 7 November 2013 the Fair Work Commission (FWC) proposed that the standard consultation term currently in modern awards (applying to consultation over major workplace change), be varied to reflect the new legislative requirement. The draft term proposed by the FWC can be accessed here.
The FWC invited submissions on the draft term to be made by 6 December 2013. To date no submissions have been published, and it is likely that the draft term will not change. The FWC must make a final determination on the term by 31 December 2013.
Model term for enterprise agreements
While enterprise agreements must include a consultation term that complies with the amendments, employers and employees may negotiate the wording of the term if they do not wish to adopt the model consultation term prescribed by the Fair Work Regulations 2007 (Cth) (model consultation term). Enterprise agreements that do not contain a consultation term will be taken to include the model consultation term.
What should employers do?
To prepare for the upcoming changes, employers should:
- identify any employees who are covered by a modern award or enterprise agreement and will be protected under the new consultation terms;
- ensure they are familiar with the new consultation terms in any relevant modern awards and the model term prescribed by the regulations;
- consider the new consultation requirements when bargaining for a new enterprise agreement, understanding that if a consultation term is not agreed, the model consultation term will apply;
- ensure internal policies and procedures are consistent with the new consultation requirements; and
- document consultation meetings as proof of compliance with the new obligations to combat any potential claims of breach of a modern award or enterprise agreement.
Bullying – the new frontier
New anti-bullying jurisdiction – overview
As a result of amendments to the Fair Work Act 2009 (Cth) (Act), from 1 January 2014 a worker who reasonably believes they are being bullied at work will be able to make an application to the Fair Work Commission (FWC) for an order to stop the bullying.
The new anti-bullying jurisdiction has broad coverage and will be accessible to any individual (other than a member of the Defence Force) who performs work for a business or undertaking. This includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students on work experience and volunteers.
A worker will be ‘bullied at work’ if while at work they are subjected to repeated unreasonable behaviour that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner, that does not leave the person feeling victimised and/or humiliated, will not amount to bullying.
The FWC must start to deal with an application for a bullying order within 14 days. This may be by informing itself through inquiries, or requesting information be provided by the parties involved.
If the FWC is satisfied that a worker has been bullied at work, and there is a risk that the worker will continue to be bullied, it can make whatever order it considers appropriate, other than an order for pecuniary payment. Orders may be made against an employer or an individual, and may regulate behaviour outside of work. Examples of orders that the FWC may make include (but are not limited to) orders for the behaviour to stop, orders for compliance and/or review of the organisation’s workplace policies and procedures and orders for the provision of information, training and support. Breaches of a bullying order will attract a civil penalty, but will not constitute an offence.
While it is not necessary that a worker make use of internal grievance or dispute resolution procedures before applying for a bullying order, in considering the terms of any order it makes, the FWC must take into account any grievance and dispute resolution procedures available to the worker, as well as any final or interim outcomes of those procedures or related investigations.
The anti-bullying jurisdiction falls outside the ‘double-dipping’ provisions in the Act meaning that a worker who applies for a bullying order will be able to seek other remedies under the Act and other legislation in relation to the bullying behaviour eg claims under work health and safety legislation and general protections claims.
What does this mean for organisations?
It is anticipated that the new jurisdiction will be widely used resulting in scrutiny of internal organisational policies and procedures and, more broadly, the culture of workplaces.
While the jurisdiction will provide greater scope for managing bullying behavior, there is a risk that the provisions may be abused by workers seeking to frustrate or delay legitimate management processes, or that workers will lodge misconceived applications if they do not properly understand what constitutes bullying within the meaning of the Act. Either way, the new jurisdiction is likely to result in a rise in bullying complaints costing organisations time, money and effort.
Because the jurisdiction allows workers to initially bypass internal processes, it is expected that applications for bullying orders are likely to be more prevalent in organisations where workers have a perception that bullying is tolerated or poorly managed in the organisation, where management and/or HR are not seen as independent and objective, and where there is an ‘anti-dobbing’ culture.
Safe Work Australia Guides
The commencement of the new jurisdiction coincides with the release of two new guides on workplace bullying by Safe Work Australia; ‘Guide for Preventing and Responding to Workplace
Bullying’ and ‘Workplace Bullying – a Worker’s Guide’. The guides are going to be useful tools for employers in reviewing and auditing their existing practices and for formulating a best practice approach to preventing and responding to bullying.
While the guides are not legally enforceable, and are not admissible in proceedings as evidence of whether a duty under workplace health and safety legislation has been met (as is the case with Codes of Practice) they will form part of the evidence matrix in work health and safety prosecutions, and likely in the defence of FWC bullying claims, as to what the employer ought to have known about how to prevent and respond to bullying in the workplace. The guides will be the base from which the employer’s actions (or inaction) will be assessed.
Case management model
The FWC has released a summary of its case management model (CMM) that sets out how the FWC will deal with applications for bullying orders in practice.
The CMM includes mechanisms for ensuring the validity of applications and for identifying jurisdictional issues at an early stage, and provides for all parties to be notified of an application and given an opportunity to be heard prior to a substantive hearing being conducted.
The CMM provides that prior to a matter being assigned for mediation or determination, a report will be made by the FWC anti-bullying team and provided to the Panel Head. The Report will outline any jurisdictional issues, the nature of the alleged conduct, whether it may be suitable for mediation, the urgency of the matter and any other relevant factors.
Mediations will be confidential and voluntary and will only be proposed where it is appropriate having regard to the nature of the parties and the allegations made. The emphasis will be on repairing relationships and monetary settlements will neither be promoted nor recommended.
Unless determined otherwise, mediations and conferences will be conducted in private and the identities of parties will not be disclosed in public conference listings. However, unless orders have been made for a private hearing, hearings will be public.
To supplement the CMM, on 5 December the FWC published draft Fair Work Commission rules which incorporate anti-bullying amendments, as well as a suite of draft forms including an employer/principal response. Given the period for consultation on the documents has been limited to 7 days, and no submissions appear to have been made to date, the documents are unlikely to change.
Draft Anti-bullying benchbook
The FWC has also released a draft anti-bullying ‘benchbook’ for public consultation. The ‘benchbook’ includes summaries of relevant cases and legislation to provide examples and context relevant to the jurisdiction. Consultation on the ‘benchbook’ ends on 27 December 2013. To date, few submissions have been publicised so it is unlikely wholesale changes will be made to the ‘benchbook’.
What should organisations do?
Organisations should take the provisions seriously and take steps now to ensure they are not caught off guard by the new provisions. To do this, organisations should:
- Become familiar with the provisions and guidance material. Understand your obligations and what constitutes a ‘best practice’ approach to bullying.
- Tighten up workplace policies and procedures and include a clear definition and examples of bullying. Ensuring bullying and complaint handling policies reflect the new laws and demonstrate the organisation’s preparedness to proactively deal with complaints.
- Ensure managers are properly trained in performance/conduct management and ‘soft skills’, and ensure they understand the new consequences for poor management and communication practices.
- Deal with perception issues. Convey to workers through policy and practice that the organisation takes bullying seriously and that bullying will be dealt with quickly, effectively and objectively to minimise the incentive to seek external assistance.
457 Visa Program – Labour market testing
From 23 November 2013, employers seeking to access the 457 visa program need to undertake labour market testing in relation to certain skilled positions.
According to the government, these new measures are aimed at ensuring that the 457 visa program is only used to meet genuine skill shortages, by requiring sponsoring businesses to make genuine efforts to provide employment opportunities to Australians.
What is labour market testing?
The new provisions refer to efforts made by a sponsor to test the Australian labour market to ensure that there is no suitably qualified and experienced Australian citizen or permanent resident or ‘eligible temporary visa holder’ available to fill that position.
Efforts to recruit locally for the nominated position (or similar positions) will need to have taken place within the 12 months before lodging the nomination, and should be provided at the time of lodgement.
When are employers required to undertake labour market testing?
Sponsoring employers are required to undertake labour market testing unless the position is “exempt”. The exemptions are currently broad enough to cover the majority of occupations eligible for sponsorship under the 457 program.
A sponsor will be exempt from undertaking labour market testing if:
- It would be inconsistent with Australia’s international trade obligations. This includes workers nominated from certain countries (including ASEAN nations), certain intra-company transfers, and some executives and senior managers;
- The position relates to relief or recovery for a major disaster; or
- The nominated position relates to an occupation with “Skill Level 1” or “Skill Level 2” within the Australian New Zealand Standard Classification of Occupations (AZNSCO). Practically, this covers most managerial or professional occupations, except engineering and nursing occupations which are “protected” occupations according to the legislation.
The effect of these exemptions is that most trade and technical occupations, as well as the “protected” engineering and nursing occupations, will require labour market testing. For a full list of occupations that will require labour market testing.
What do sponsors need to do?
Where necessary, evidence of labour market testing must be provided at the time of lodging the nomination. Sponsors can provide the following:
- details of paid or unpaid advertising (this includes advertising on the sponsor’s own website or social media), or other recruitment efforts (including the use of external recruitment agencies), that have been conducted by the business within the 12 months before lodging the nomination;
- results of the advertising or other recruitment methods produced; and
- if responses were received, a statement outlining why any candidates were unsuitable for the position, or were unwilling to take up the position.
Detailed records of job interviews or copies of job applications are not required.
Evidence of labour market testing will also be required where, in the four months before lodging the nomination, redundancies or retrenchments have occurred in the same occupation as the nominated position.
Affected sponsors should be mindful of the new requirements, and retain evidence of job advertisements or recruitment activities as this can continue to be relied upon for a period of 12 months.
The exemptions to the new provisions are broad enough to cover most occupations on the Consolidate Sponsored Occupations List (CSOL) that are eligible for nomination under the 457 program. Therefore, many businesses may presently be unaffected by the new requirements.
All sponsors should be aware that the new provisions have been enshrined in legislation, so they could be expanded or amended at a later date. The government may choose to limit the exemptions (which are currently very broad) in future.
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