Changes introduced by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018

By Renee Karakinos, Lawyer, MST Lawyers

Background

On 5 December 2018, Parliament enacted the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Repeal Act). The Repeal Act can be accessed here.

The Repeal Act amends the Fair Work Act 2009 (Cth) (the Act) by:

• Abolishing the 4 yearly reviews of modern awards;
• Giving the Fair Work Commission (FWC) more discretion to overlook minor procedural non-compliance in the enterprise agreement-making process, provided that the employees are unlikely to have been disadvantaged; and
• Enabling Parliament to establish a Commission to investigate and report on alleged misbehaviour or incapacity of a FWC member.

Schedule 1 of the Repeal Act – Abolishment of 4 yearly reviews of awards

The Productivity Commission’s Final Report into the Workplace Relations Framework notes that in practice the 4 yearly review placed substantial demands on parties and the process does not meet the Fair Work Act’s objective to create a simple, easy to understand, sustainable award system.

Schedule 1 of the Repeal Act therefore repeals the current requirement for 4 yearly reviews of modern awards from 1 January 2018 onwards.  Reviews that commenced prior to 1 January 2018 and have not concluded under the current 4 yearly review will be able to be finalised after that date.

Further amendments ensure that the residual framework for the FWC to make, vary and revoke modern awards maintain a fair and relevant safety net. Any party wishing to seek a variation to a modern award, after 12 December 2018 will be required to make an application to the Fair Work Commission.

Schedule 2 – Procedural requirements in enterprise bargaining

Schedule 2 of the Repeal Act includes provisions that enable the FWC to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that employees were not likely to have been disadvantaged by those errors.

When considering whether the employees were not likely to have been disadvantaged by an error, the FWC could take into account, for example, the effect of the error and the circumstances of the error.

Examples of minor procedural or technical errors could include (without limitation):

• employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3) of the Act);
• employees being requested to approve a proposed enterprise agreement on the 21st day after the last notice of representational rights (Notice) was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2) of the Act);
• the inclusion of the employer’s company logo or letterhead on a Notice;
• the inclusion of additional materials that are stapled with a Notice; or
• minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than ‘contact your employer’).

These changes took effect on 12 December 2018.

Schedule 3 – FWC Members

Schedule 3 of the Repeal Act inserts a new section 641B into the Act to provide for a modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 to FWC Members. This will enable the Parliament to establish a Commission to investigate and report on alleged misbehaviour or incapacity of an FWC Member, with a view to consider whether to request the Governor-General to:

• remove a ‘transitioned FWC Member’ (i.e. an FWC Member formerly of the Australian Industrial Relations Commission) from office under section 82 or 86 of the Workplace Relations Act 1996, as continued in force by item 2 of Schedule 18 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or

• terminate the appointment of a ‘non-transitioned FWC Member’ under section 641 of the Act.

These changes took effect on 12 December 2018.

Conclusion

For further information on the above changes, click here to access the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017.

If you have any questions regarding the latest changes to the Act and how the above amendments may affect your business, please contact the MST Lawyers’ Employment Law team by email or call +61 3 8540 0229.