Federal Government’s Workplace Reform Agenda, PVTA Review & other issues Ian Macdonald - APTIA Tim Capelin – Piper Alderman Australasia Bus and Coach Conference and Expo 29 September 2014

Overview The Coalition’s Policy to Improve the Fair Work Laws, May 2013 Fair Work Amendment Bill 2014 Other proposals and initiatives Changes still to come What will happen in the Senate? Looking ahead – a tale of two inquiries PVTA – 4 Yearly Review Other relevant legal developments

Fair Work Laws policy Fair Work laws to be maintained, pending a ‘comprehensive and broad’ inquiry by the Productivity Commission Guarantees that >‘Pay and conditions of workers will be protected’ >‘Based on the laws as they stand now, the Coalition has no plans to make any other changes to the Fair Work laws.’ >‘Changes to regulations and other rules … will only be made in order to give effect to our policy and will go no further’

Fair Work Laws policy But some changes flagged in relation to >institutions >union rights of entry >regulation of registered organisations >individual flexibility arrangements >enterprise bargaining >workplace bullying >small business support >2012 Fair Work Review recommendations

Fair Work Amendment Bill 2014 Introduced 27 February 2014, but yet to pass the Senate Senate Committee report 5 June 2014 Proposes changes to >employee entitlements (based on 2012 Review) >individual flexibility arrangements >greenfields agreements >union rights of entry >protected industrial action

Individual flexibility arrangements & Greenfields Agreements IFAs to remain ‘optional’, but more ‘accessible’ by implementing Fair Work Review recommendations Good faith bargaining rules to apply to Greenfields Agreements, enforceable by bargaining orders If negotiations fail after 3 months, can seek FWC approval

Union rights of entry Entry for discussion purposes only where >union is covered by enterprise agreement >or invited by a member or potential member Entry for investigative purposes unchanged Recent changes on lunchrooms and remote workplaces to be repealed FWC can curtail excessive visits even if employer can’t show ‘unreasonable diversion of [its] critical resources’

Protected industrial action No application for protected action ballot order unless employer has become obliged to issue representation notices for proposed EA Note also separate change recently made by Fair Work Amendment (Protected Industrial Action) Regulation 2014

Registered organisations Fair Work (Registered Organisations) Amendment Bill 2014 >reintroduced in June 2014 after 2013 Bill defeated in Senate, now before Senate again >new accounting and disclosure requirements for registered unions and employer associations >higher penalties for breaching FW(RO) Act 2009 >new Registered Organisations Commission to enforce controls in place of FWC, operating as an independent part of the Office of the FWO

Paid parental leave Paid Parental Leave Amendment Bill 2014 >introduced March 2014, now before Senate >removes ‘paymaster’ role from employers, even for long- term employees >Family Assistance Office to administer all parental leave payments, unless both employer and employee agree otherwise But still no sign of legislation to change entitlements, even though new scheme is supposed to start from 1 July 2015

Superannuation guarantee Current minimum employer contribution under SG (Administration) Act 1992 >9.5% (from 1 July 2014), rising to 12% in July 2025 New table of increases: >Now – 9.5% >1 July 2021 – 10% >1 July 2022 – 10.5% >1 July 2023 – 11% >1 July 2024 – 11.5% >1 July 2025 – 12%

Other initiatives Reporting requirements under Workplace Gender Equality Act 2012 reduced and delayed Moratorium on applications from eligible private sector employers to join Comcare lifted in December 2013

Other initiatives Announced in Budget that Fair Entitlements Guarantee Act 2012 would be amended to >cap recovery of redundancy payments at NES maximum of 16 weeks’ pay >freeze indexation of maximum weekly wage until July 2018 Review of need for Road Safety Remuneration Tribunal >report delivered in April 2014, not yet released

Other initiatives Inquiry by ALRC into federal laws that ‘encroach upon traditional rights, freedoms and privileges’ Consideration being given to ‘independent appeal jurisdiction’ for the FWC

Other initiatives 2014 award review >initial government submission emphasised need for awards to be simplified and for ‘softening economic environment and labour market’ to be ‘carefully considered’ >but little sign government will directly seek radical changes

Other election commitments FWC must not approve EA unless satisfied that the parties have ‘considered and discussed ways to improve productivity’ Protected industrial action permitted only in support of ‘sensible and realistic’ claims that >are not ‘exorbitant or excessive’ >are ‘fair and reasonable’ by reference to relevant workplace and industry conditions >‘would not adversely affect productivity’

Other election commitments Amend new workplace bullying provisions so that >complainants must first seek help from an ‘independent regulatory agency’ >provisions expressly apply to bullying by union officials (note: actions against unions under amended laws.) Immunise smaller employers from penalties for inadvertently breaching workplace laws when following FWO advice

Other election commitments On independent contractors, Coalition promised it would >not change tax laws on personal services income >resist ‘Labor’s co-ordinated attack on the self- employed’

The Senate – key players

A tale of two inquiries Royal Commission into Trade Union Governance and Corruption Productivity Commission Review of the Workplace Relations Framework

Conclusion Industrial law changes are coming slowly Modest changes have practical significance Good direct relationships remain critical

PVTA 4 Yearly Review Common Issues – annual leave, transition provisions, flexibility, public holidays and casual and permanent part time employment. Annual leave loading – exemption from paying annual leave loadings on termination. Others – cashing out annual leave, excessive leave (PVTA), annual leave taken in advance (PVTA), paid leave in advance. Transition provisions includes accident pay and district allowances (NT and WA)

PVTA 4 Yearly Review Permanent Part time issues – reduced minimum engagements, agreed weekly hours, overtime after 38 hours or 10m hours a day TWU seeks to include public holidays even if an employee is not rostered on the day of the holiday. Casual issues – reduced minimum hours or by agreement, no penalties and a reduced loading. TWU seeks casual conversions and 3 hour minimum engagements.

PVTA 4 Yearly Review Common Issues will impact on the PVTA. There are already two applications to vary the PVTA from the ACTU (transition and leave loading) Other applications from the ACTU on the PVTA are likely to be for a casual conversion clause and a provision that public holiday payments should occur even if an employee is not rostered on the holiday. The TWU have indicated that they may look at increasing to Grade 4, school bus drivers who collect fares and issue tickets, to extend to 10 hours the break between shifts when overtime is worked and to better define shift workers. APTIA’s IWG has flagged defining ‘arrangements for when worked is performed’ to breaks and hours of work in the flexibility clause and to allowing the parties to agree upon minimum engagements of employment.

PVTA 4 Yearly Review Stage 2 which includes the PVTA commences in September whilst the common issues including permanent part time and casuals are due to commence at the same time in September. Other issues such as flexibility and public holidays are scheduled for No modern award will be varied until the common issues are finalised. The FWC has developed a templar award which means that there will be better interpretations including how overtime and casual loadings are to be determined and the OFWO has also flagged that they will present any anomalies to the FWC to consider. A new PVTA will come out of the 4 year review.

NES - Family Friendly Arrangements An employee can request (in writing and with reasons) flexible working arrangements in the following circumstances: a parent with school children, has a disability, is a carer, is 55 or older, experiencing violence in the work place or cares for someone who does. Includes a parent returning to work after taking parental leave. Must be a permanent employee with at least 12 months service or a long term casual doing regular and systematic work. Employer must reply in writing within 21 days. It can be denied only on reasonable business grounds. Defined as being too costly, no capacity to change working arrangements, impractical to change, impacts on efficiency and productivity and negative impact on customers. It may be an issue for dispute resolution and subsequent S.739 application, but not if you don’t confirm in your EA!

Consultation Consultation occurs in a variety of workplace instances i.e. Major change, rosters and hours of work, dispute resolution, disciplinary matters, work health and safety and terms of employment (fair bargaining). The Fair Work Act and the PVTA and EA now deals with changes to regular (not irregular, sporadic or non systematic) rosters and hours of work. An employer must provide information about the change, receive a response from the affected person, a representative to assist with response, and consider the response. “The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response. The right to be consulted is a substantive right, it is not to be treated perfunctorily (hastily) or as a mere formality.”

Bullying The Fair Work (Amendment) Act 2013 which gave us family friendly arrangements and increased consultation also gave us bullying as an actionable matter which can be brought by an employee against an employer or against another employee. Bullying still remains actionable as a work health and safety breach and also before the discrimination tribunals. As part of the performance management of an employee is it is important to consider this new process. The Fair Work Commission does not have the power to order compensation but only to make orders requiring the parties to stop the bullying if it is found to be present. However breaches of the anti bullying orders can lead to high sanctions.

Bullying “Bullying’ is defined under the Act (Section 789F) as where an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member and that behaviour creates a risk to health and safety. Bullying does not apply to reasonable management action. The express exclusion from bullying behaviour of ‘reasonable management action carried out in a reasonable manner’ emphasises the rights and obligations of persons conducting a business to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and effectively directing and controlling the way work is carried out.

Bullying examples Abusive, insulting or offensive language or comments Unjustified criticism or complaints Deliberately excluding someone from workplace activities Withholding information that is vital for effective work performance Setting unreasonable timelines or constantly changing deadlines Setting tasks that are unreasonably below or beyond a person’s skill level Denying access to information, supervision, consultation or resources such that it has a detriment to the worker Spreading misinformation or malicious rumours Changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular workers or workers Excessive scrutiny at work.

APTIA and Reform APTIA has determined, through its Industrial Working Group, three significant policy positions which it will take to its Nation Seminar, Government and the Productivity Commission Inquiry in These positions include: 1.That Public Transport is an essential service and that the current bar to suspending or terminating protected action is too high and should allow for arbitrated workplace determinations of enterprise agreements in which negotiations have stalemated after a predetermined period. 2.That the requirements pursuant to the Fair Work (Registered Organisations) Act 2009 should be watered down for small organisations with less than 100 members and a gross income less than a prescribed figure. 3.That the Fair Work (Transmission of Business) Act 2012 is repealed to allow the Crown to privatise state utilities without the need for an incoming private employer to take on existing state negotiated labour agreements.

Questions