Parliament of Australia:House:Committees:Standing Committee on Education and Employment:Advisory report on the Fair Work Amendment (Better Work/Life Balance) Bill 2012

Appendix A—Text of the Bill

2010-2011-2012

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

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

No. , 2012

(Mr Bandt)

A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

Contents

1 Short title.................................................................................1

2 Commencement...................................................................1

3 Schedule(s)............................................................................1

Schedule 1—Amendments 3

Fair Work Act 2009 3

1 A Bill for an Act to amend the Fair Work Act 2009, and

2 for related purposes

3 The Parliament of Australia enacts:

4 1 Short title

5 This Act may be cited as the Fair Work Amendment (Better
6 Work/Life Balance) Act 2012.

7 2 Commencement

8 This Act commences on the day after this Act receives the Royal
9 Assent.

10 3 Schedule(s)

11                     Each Act that is specified in a Schedule to this Act is amended or
12                     repealed as set out in the applicable items in the Schedule concerned,
13                     concerned, and any other item in a Schedule to this Act has effect
14                     according to its terms.

1 Schedule 1—Amendments
2

3 Fair Work Act 2009

4           1    Paragraph 5(8)(a)
5                              Omit “or an equal remuneration order (see Part 2 7)”, substitute “, an
6                              equal remuneration order (see Part 2 7) or a flexible working
7                              arrangements order (see Part 2 7A)”.

8 2 Section 12
9 Insert:

10 flexible working arrangements order: see subsection 306F(1).

11 3 Subparagraph 43(2)(a)(ii)
12 Omit “and”, substitute “or”.

13            4   At the end of paragraph 43(2)(a)
14                            Add:
15                                                            (iii)       a flexible working arrangements order (see Part 2 7A);
16                                                                            and

17 5 Subsection 44(2)
18 Omit “65(5) or”.

19            6   Subsection 44(2) (note 1)
20                            Repeal the note, substitute:
21                                            Note 1:    Subsection 76(4) states that an employer may refuse an application to
22                                                            extend unpaid parental leave only on reasonable business grounds.

23 7 Subsection 44(2) (note 2)
24 Omit “65(5) or”.

25 8 Division 4 of Part 2 2
26 Repeal the Division.

27 9 Section 146 (note)
28 Omit “65(5) or”.

1           10   After paragraph 172(1)(c)
2                              Insert:
3                                              (ca)      matters pertaining to flexible working arrangements;

4 11 Subsection 186(6) (notes 1 and 2)
5 Omit “65(5) or”.

6 12 After Part 2 7
7 Insert:

8 Part 2 7A—Flexible working arrangements

9 Division 1—Introduction

10 306A Guide to this Part

11

This Part provides processes for changing working arrangements.

Division 1 deals with preliminary matters.

Division 2 deals with requests for flexible working arrangements, including flexible working arrangements for employees who are carers.

Division 3 provides for the making of flexible working arrangements orders by FWA to ensure that employers comply with this Part.

13
14
15

16
17
18

19 306B Meanings of employee and employer

20 In this Part, employee means a national system employee, and
21 employer means a national system employer.

22 306C State and Territory laws that are not excluded

23                            (1) This Act is not intended to apply to the exclusion of laws of a State
24                            or Territory that provide employee entitlements in relation to
25                            flexible working arrangements, to the extent that those entitlements

1 are more beneficial to employees than the entitlements under this
2 Part.

3                              (2) However, a law of a State or Territory has no effect in relation to
4                              an employee to the extent that it provides an employee entitlement
5                              in relation to flexible working arrangements that is inconsistent
6                              with a term of an enterprise agreement that applies to the
7                              employee.

8 Division 2—Requests for flexible working arrangements

9 306D Requests for flexible working arrangements

10 Employee or organisation may request change

11                            (1) An employee, or an employee organisation that is entitled to
12                                    represent the employee, may request the employer to change the
13                                   employee’s working arrangements.

14                                   Note:                         Examples of changes in working arrangements include changes in
15                                                      hours of work, changes in patterns of work and changes in location of
16                                                      work.

17                            (2) Neither the employee, nor the organisation, is entitled to make the
18                                     request unless:
19                                            (a) for an employee other than a casual employee—the employee
20                                                      has completed at least 12 months of continuous service with
21                                                      the employer immediately before making the request; or
22                                            (b) for a casual employee—the employee:
23                                                     (i)   is a long term casual employee of the employer
24                                                                immediately before making the request; and
25                                                         (ii) has a reasonable expectation of continuing employment
26                                                                by the employer on a regular and systematic basis.

27 Formal requirements

28                            (3) The request must:
29                                            (a) be in writing; and
30                                            (b) set out details of the change sought and of the reasons for the
31                                                      change.

1 Responding to the request

2                            (4) The employer must give the employee, or the employee
3                                   organisation (as the case requires), a written response to the request
4                                   within 21 days, stating whether the employer grants or refuses the
5                                   request.

6 (5) The employer may refuse the request only on reasonable business
7 grounds.

8 (6) If the employer refuses the request, the written response under
9 subsection (4) must include details of the reasons for the refusal.

10 306E Requests for flexible working arrangements—carers

11 Request for change for employee who is a carer

12                                (1) An employee who has responsibility for the care of another person,
13                                        or an employee organisation that is entitled to represent the
14                                        employee, may request the employer to change the employee’s
15                                        working arrangements to assist the employee to care for the other
16                                        person.

17                                       Note:            Examples of changes in working arrangements include changes in
18                                                            hours of work, changes in patterns of work and changes in location of
19                                                            work.

20                                  (2) Neither the employee, nor the organisation, is entitled to make the
21                                           request unless:
22                                            (a) for an employee other than a casual employee—the employee has
23                                                completed at least 12 months of continuous service with
24                                                   the employer immediately before making the request; or
25                                            (b) for a casual employee—the employee:
26                                             (i) is a long term casual employee of the employer
27                                                  immediately before making the request; and
28                                                            (ii) has a reasonable expectation of continuing employment
29                                                                     by the employer on a regular and systematic basis.

30 Formal requirements

31                                    (3) The request must:
32                                 (a) be in writing; and
33                                 (b) set out details of the change sought and of the reasons for the
34                                       change.

1                       Responding to the request

2                                    (4) The employer must give the employee, or the employee
3                                              organisation (as the case requires), a written response to the request
4                                   within 21 days, stating whether the employer grants or refuses the
5                                   request.

6 (5) The employer may refuse the request only on serious
7 countervailing business grounds.

8 (6) If the employer refuses the request, the written response under
9 subsection (4) must include details of the reasons for the refusal.

10 Division 3—Flexible working arrangements orders

11 306F FWA may make flexible working arrangements order

12 Power to make flexible working arrangements order

13                                    (1) FWA may make any order (the flexible working arrangements
14                                           order) it considers appropriate to ensure that an employer complies
15                                           with section 306D or 306E.

16 Who may apply for flexible working arrangements order

17                                     (2) FWA may make a flexible working arrangements order only on
18                                            application by any of the following:
19                                            (a) an employee or organisation whose request under subsection
20                                                    306D(1) or 306E(1) for a change in working arrangements
21                                                     has been refused;
22                                            (b) an employee organisation that is entitled to represent an
23                                                    employee covered by paragraph (a);
24                                            (c) the Age Discrimination Commissioner, the Disability
25                                                   Disability Discrimination Commissioner or the Sex Discrimination
26                                                    Commissioner.

27 306G Implementation of flexible working arrangements in stages

28                                            A flexible working arrangements order may implement changed
29                                            working arrangements in such stages (as provided in the order) as
30                                            FWA thinks appropriate.

1 306H Contravening a working arrangements order

2 An employer must not contravene a term of a flexible working
3 arrangements order.

4 Note: This section is a civil remedy provision (see Part 4 1).

5 306I Inconsistency with modern awards and enterprise agreements

6                              (1) A term of a modern award has no effect in relation to an employee
7                                       to the extent that it is less beneficial to the employee than a term of
8                                       a flexible working arrangements order that applies to the employee.

9                              (2) A term of a flexible working arrangements order has no effect in
10                                     relation to an employee to the extent that it is inconsistent with a
11                                     term of an enterprise agreement that applies to the employee.

12 13 Subsection 539(2) (after table item 9)
13 Insert:

Part 2‑7A—Flexible working arrangements

306H

(a) a person to whom a flexible working arrangements order relates;

(b) an organisation entitled to represent a person to whom a flexible working arrangements order relates

(a) the Federal Court;

(b) the Federal Magistrates Court;

60 penalty units

16 14 Subsection 545(1) (note 4)
17 Omit “65(5),”.

18            15   After paragraph 557(2)(f)
19                            Insert:
20                                 (fa) section 306H (which deals with contraventions of flexible
21                                         working arrangements orders);

1              16   After paragraph 576(1)(f)
2                              Insert:
3                                              (fa) flexible working arrangements (Part 2 7A);

4           17   Paragraph 653(1)(c)
5                              Repeal the paragraph, substitute:
6                                              (c) conduct research into the operation of the provisions of the
7                                                      National Employment Standards relating to requests for
8                                                      extensions of unpaid parental leave under subsection 76(1);
9                                                    and
10                                            (ca) conduct research into the operation of Part 2 7A in relation
11                                                       to requests for changed working arrangements; and

12            18    After paragraph 675(2)(e)
13                            Insert:
14                                            (ea) a flexible working arrangements order

15            19   At the end of subsection 716(1)
16                            Add:
17                                            ; (g) a term of a flexible working arrangements order.

18 20 Subsection 739(2)
19 Omit “65(5) or”.

20 21 Subsection 739(2) (note)
21 Omit “65(5) or”.

22 22 Subsection 740(2)
23 Omit “65(5) or”.

24 23 Subsection 740(2) (note)
25 Omit “65(5) or”.