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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Better
Work/Life Balance) Bill 2018
No. , 2018
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Fair Work Act 2009
3
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Fair Work Amendment (Better Work/Life Balance)
5
Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Better Work/Life Balance) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Before paragraph 5(8)(a)
4
Insert:
5
(aa) provided by a flexible working arrangements order (see
6
Subdivision B of Division 4 of Part 2-2); and
7
2 Section 12
8
Insert:
9
flexible working arrangements order: see subsection 65B(1).
10
3 Subsection 22(4) (including the note)
11
Repeal the subsection, substitute:
12
Meaning for Division 5, and Subdivision A of Division 11, of
13
Part 2-2
14
(4) For the purposes of Division 5, and Subdivision A of Division 11,
15
of Part 2-2:
16
(a) a period of service by a national system employee with his or
17
her national system employer is a period during which the
18
employee is employed by the employer, but does not include:
19
(i) any period of unauthorised absence; or
20
(ii) any other period of a kind prescribed by the regulations;
21
and
22
(b) a period referred to in subparagraph (a)(i) or (ii) does not
23
break a national system employee's continuous service with
24
his or her national system employer, but does not count
25
towards the length of the employee's continuous service; and
26
(c) subsections (1), (2) and (3) do not apply.
27
Note:
Division 5, and Subdivision A of Division 11, of Part 2-2 deal,
28
respectively, with parental leave and related entitlements, and notice
29
of termination or payment in lieu of notice.
30
4 Before paragraph 43(2)(a)
31
Insert:
32
Schedule 1 Amendments
4
Fair Work Amendment (Better Work/Life Balance) Bill 2018
No. , 2018
(aa) those terms and conditions arising from a flexible working
1
arrangements order (see Subdivision B of Division 4 of
2
Part 2-2); and
3
5 Subsection 44(2)
4
Omit "65(5)" (first occurring), substitute "65(5), 65A(5)".
5
6 Subsection 44(2) (notes 1 and 2)
6
Repeal the notes, substitute:
7
Note 1:
Subsections 65(5) and 65A(5) state that an employer may refuse a
8
request for flexible working arrangements only for serious
9
countervailing business reasons. Subsection 76(4) states that an
10
employer may refuse an application to extend unpaid parental leave
11
only on reasonable business grounds.
12
Note 2:
Modern awards and enterprise agreements include terms about settling
13
disputes in relation to the National Employment Standards (other than
14
disputes as to whether an employer had serious countervailing
15
business reasons or reasonable business grounds under
16
subsection 65(5), 65A(5) or 76(4)).
17
7 Paragraph 61(2)(b)
18
Before "Division 4", insert "Subdivision A of".
19
8 Division 4 of Part 2-2
20
Repeal the Division, substitute:
21
Division 4--Flexible working arrangements
22
Subdivision A--Requests for flexible working arrangements
23
65 Requests for flexible working arrangements
24
Employee or organisation may request change
25
(1) An employee, or an employee organisation that is entitled to
26
represent the employee, may request the employer to change the
27
employee's working arrangements.
28
Note:
Examples of changes in working arrangements include changes in
29
hours of work, changes in patterns of work and changes in location of
30
work.
31
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
5
(2) Neither the employee, nor the organisation, is entitled to make the
1
request unless:
2
(a) for an employee other than a casual employee--the employee
3
has completed at least 12 months of continuous service with
4
the employer immediately before making the request; or
5
(b) for a casual employee--the employee:
6
(i) is a long term casual employee of the employer
7
immediately before making the request; and
8
(ii) has a reasonable expectation of continuing employment
9
by the employer on a regular and systematic basis.
10
Formal requirements
11
(3) The request must:
12
(a) be in writing; and
13
(b) set out details of the change sought and of the reasons for the
14
change.
15
Responding to the request
16
(4) The employer must give the employee, or the employee
17
organisation (as the case requires), a written response to the request
18
within 21 days, stating whether the employer grants or refuses the
19
request.
20
(5) The employer may refuse the request only for serious
21
countervailing business reasons.
22
(6) If the employer refuses the request, the written response under
23
subsection (4) must include details of the reasons for the refusal.
24
65A Requests for flexible working arrangements--carers
25
Request for change for employee who is a carer
26
(1) An employee who has responsibility for the care of another person,
27
or an employee organisation that is entitled to represent the
28
employee, may request the employer to change the employee's
29
working arrangements to assist the employee to care for the other
30
person.
31
Schedule 1 Amendments
6
Fair Work Amendment (Better Work/Life Balance) Bill 2018
No. , 2018
Note:
Examples of changes in working arrangements include changes in
1
hours of work, changes in patterns of work and changes in location of
2
work.
3
(2) Neither the employee, nor the organisation, is entitled to make the
4
request unless:
5
(a) for an employee other than a casual employee--the employee
6
has completed at least 12 months of continuous service with
7
the employer immediately before making the request; or
8
(b) for a casual employee--the employee:
9
(i) is a long term casual employee of the employer
10
immediately before making the request; and
11
(ii) has a reasonable expectation of continuing employment
12
by the employer on a regular and systematic basis.
13
Formal requirements
14
(3) The request must:
15
(a) be in writing; and
16
(b) set out details of the change sought and of the reasons for the
17
change.
18
Responding to the request
19
(4) The employer must give the employee, or the employee
20
organisation (as the case requires), a written response to the request
21
within 21 days, stating whether the employer grants or refuses the
22
request.
23
(5) The employer may refuse the request only for serious
24
countervailing business reasons.
25
(6) If the employer refuses the request, the written response under
26
subsection (4) must include details of the reasons for the refusal.
27
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
7
Subdivision B--Flexible working arrangements orders
1
65B FWC may make flexible working arrangements order
2
Power to make flexible working arrangements order
3
(1) The FWC may make any order (the flexible working
4
arrangements order) it considers appropriate to ensure that an
5
employer complies with section 65 or 65A.
6
Who may apply for flexible working arrangements order
7
(2) The FWC may make a flexible working arrangements order only
8
on application by any of the following:
9
(a) an employee or organisation whose request under
10
subsection 65(1) or 65A(1) for a change in working
11
arrangements has been refused;
12
(b) an employee organisation that is entitled to represent an
13
employee covered by paragraph (a);
14
(c) the Age Discrimination Commissioner, the Disability
15
Discrimination Commissioner or the Sex Discrimination
16
Commissioner.
17
65C Implementation of flexible working arrangements in stages
18
A flexible working arrangements order may implement changed
19
working arrangements in such stages (as provided in the order) as
20
the FWC thinks appropriate.
21
65D Contravening a working arrangements order
22
An employer must not contravene a term of a flexible working
23
arrangements order.
24
Note:
This section is a civil remedy provision (see Part 4-1).
25
65E Inconsistency with modern awards and enterprise agreements
26
(1) A term of a modern award has no effect in relation to an employee
27
to the extent that it is less beneficial to the employee than a term of
28
a flexible working arrangements order that applies to the employee.
29
Schedule 1 Amendments
8
Fair Work Amendment (Better Work/Life Balance) Bill 2018
No. , 2018
(2) A term of a flexible working arrangements order has no effect in
1
relation to an employee to the extent that it is inconsistent with a
2
term of an enterprise agreement that applies to the employee.
3
Note:
A modern award or enterprise agreement must not exclude the right to
4
make a request under Subdivision A or exclude any provision of
5
Subdivision A: see section 55.
6
Subdivision C--State and Territory laws that are not excluded
7
66 State and Territory laws that are not excluded
8
(1) This Act is not intended to apply to the exclusion of laws of a State
9
or Territory that provide employee entitlements in relation to
10
flexible working arrangements, to the extent that those entitlements
11
are more beneficial to employees than the entitlements under this
12
Division.
13
(2) However, a law of a State or Territory has no effect in relation to
14
an employee to the extent that it provides an employee entitlement
15
in relation to flexible working arrangements that is inconsistent
16
with a term of an enterprise agreement that applies to the
17
employee.
18
9 Section 146 (note)
19
Repeal the note, substitute:
20
Note:
The FWC or a person must not settle a dispute about whether an
21
employer had serious countervailing business reasons or reasonable
22
business grounds under subsection 65(5), 65A(5) or 76(4) (see
23
subsections 739(2) and 740(2)).
24
10 Subsection 186(6) (notes 1 and 2)
25
Repeal the notes, substitute:
26
Note 1:
The FWC or a person must not settle a dispute about whether an
27
employer had serious countervailing business reasons or reasonable
28
business grounds under subsection 65(5), 65A(5) or 76(4) (see
29
subsections 739(2) and 740(2)).
30
Note 2:
However, this does not prevent the FWC from dealing with a dispute
31
relating to a term of an enterprise agreement that has the same (or
32
substantially the same) effect as subsection 65(5), 65A(5) or 76(4).
33
11 Paragraph 341(2)(i)
34
Before "Division 4", insert "Subdivision A of".
35
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Better Work/Life Balance) Bill 2018
9
12 Subsection 539(2) (after table item 5)
1
Insert:
2
3
Part 2-2--National Employment Standards
5AA
65D
(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
Circuit Court;
(c) an eligible
State or
Territory court
for a serious
contravention
--600 penalty
units; or
otherwise--60
penalty units
4
13 Subsection 545(1) (note 4)
5
Repeal the note, substitute:
6
Note 4:
There are limitations on orders that can be made in relation to
7
contraventions of subsection 65(5), 65A(5), 76(4), 463(1) or 463(2)
8
(which deal with serious countervailing business reasons, reasonable
9
business grounds and protected action ballot orders) (see
10
subsections 44(2), 463(3) and 745(2)).
11
14 After paragraph 557(2)(c)
12
Insert:
13
(ca) section 65D (which deals with contraventions of flexible
14
working arrangements orders);
15
15 After paragraph 557C(3)(c)
16
Insert:
17
(ca) section 65D (which deals with contraventions of flexible
18
working arrangements orders);
19
16 After paragraph 558B(7)(c)
20
Insert:
21
(ca) section 65D (which deals with contraventions of flexible
22
working arrangements orders);
23
Schedule 1 Amendments
10
Fair Work Amendment (Better Work/Life Balance) Bill 2018
No. , 2018
17 Subparagraph 653(1)(c)(i)
1
Omit "subsection 65(1)", substitute "subsection 65(1) or 65A(1)".
2
18 Before paragraph 675(2)(a)
3
Insert:
4
(aa) a flexible working arrangements order;
5
19 After paragraph 716(1)(d)
6
Insert:
7
(da) a term of a flexible working arrangements order;
8
20 Subsection 739(2)
9
Omit "reasonable business grounds under subsection 65(5)", substitute
10
"serious countervailing business reasons or reasonable business grounds
11
under subsection 65(5), 65A(5)".
12
21 Subsection 739(2) (note)
13
Omit "65(5)", substitute "65(5), 65A(5)".
14
22 Subsection 740(2)
15
Omit "reasonable business grounds under subsection 65(5)", substitute
16
"serious countervailing business reasons or reasonable business grounds
17
under subsection 65(5), 65A(5)".
18
23 Subsection 740(2) (note)
19
Omit "65(5)", substitute "65(5), 65A(5)".
20