Legal Contract

Today, as the last order of business, Parliament will resume debate of the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Bill 2017 (Review Bill).

With the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Vulnerable Workers Bill) attracting a lot of attention, the Review Bill has substantially flown under the radar.

What will the Bill do?

The Review Bill aims to do three things:

  • abolish four-yearly reviews of modern awards by the Fair Work Commission;
  • allowing the Fair Work Commission discretion to overlook minor procedural or technical errors when considering enterprise bargaining agreements for approval; and
  • extending the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 to cover members of the Fair Work Commission, so that Commissioners can be investigated for misconduct under that Act.

Why the changes?

Enterprise bargaining agreements

Readers may be aware of previously-reported cases where the strict requirements of the Fair Work Act 2009, as they currently stand, require the Fair Work Commission to reject a proposed enterprise bargaining agreement for seemingly trivial procedural or technical faults.

One case, for example, saw an enterprise bargaining agreement rejected because the notice of employee representation rights was issued to employees on company letterhead, rather than on the ‘approved form’. This meant that the parties to that agreement had to go back to the beginning and start the enterprise bargaining process all over again, at substantial expense.

Modern awards

At present, modern awards can change in two ways:

  • as part of the four-yearly review by the Fair Work Commission; or
  • on application by an interested party.

The Productivity Commission, in its report handed down in November 2015, recommended that the four-yearly reviews be abolished, as they required a Full Bench of the Fair Work Commission to review every modern award and engage in extensive consultation, even when there was no desire by anyone to make any changes to an award.

As a consequence, the four-yearly review process has proven to be cumbersome and inefficient, with the 2014 review still currently in progress. As it provides an arena in which all interests must be heard, it is also a drain on employer groups and unions alike.

The Bill aims to remove the red tape of the compulsory four-yearly review, and instead allow for awards to be varied only on application – that is, when an interested party actually wants the Commission to consider a change to the award.

What does it mean for you?

Enterprise bargaining agreements

This Bill, if passed, will allow the Commission to overlook such technical faults provided that the parties to the agreement have not been adversely affected by the fault.

As such, if when making an enterprise bargaining agreement you (or the union) fall short in some formality or technicality, you can ask the Commission to overlook that fault so long as neither yourself nor your employees are ‘adversely affected’ by the fault.

Modern awards

As for modern awards, this means that if you feel that the award is deficient in some way, or is somehow not meeting the modern awards objective, then the only way that this can be fixed is by applying to the Fair Work Commission for the award to be changed.

As modern awards are of general application across entire industries, this would be impossible in practical terms for a single business to do.

Fortunately, as a member of NRA, you are one of many retailers who likely have similar concerns to yours, and a dedicated team of industrial relations specialists who are able to assist in applying to the Commission for a change on your behalf.

For further information on how this Bill may affect your business, call our experienced workplace advisors on 1800 RETAIL (1800 738 245).