Changes to the Fair Work Act 2009 and Fair Work Regulations 2009
ER
Monday, January 14, 2019
Changes to the Fair Work Act 2009 and Fair Work Regulations 2009

NES entitlement to unpaid family and domestic violence leave

On 12 December 2018, the Fair Work Act 2009 ( FW Act) was amended to provide all employees, including casuals, covered by the National Employment Standards ( NES) with an entitlement to five days’ unpaid leave each year to allow them to address violent, threatening or abusive behaviour that they may be experiencing from a close relative.

The amendment provides the same entitlement to unpaid family and domestic violence leave included in clause 30 of the Local Government Industry Award 2010.

For Local Governments that operate in the federal IR system, all eligible Local Government employees can access the family and domestic violence leave regardless of whether the Local Government has an enterprise agreement as it is now a NES entitlement.

The full text of the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 can be viewed here.
 
Enterprise agreement pre-approval requirements and modern award review

On 12 December 2018, the FW Act was amended to simplify and streamline the Fair Work Commission’s ( FWC) modern award review and enterprise agreement approval processes.

The amendments will increase the FWC’s flexibility to approve enterprise agreements where minor or inadvertent procedural or technical errors have arisen in the process of making an agreement, if the parties would have otherwise genuinely agreed to the agreement and the employees to be covered are not likely to be disadvantaged by the errors.

Although the FWC may have increased flexibility in this regard, we strongly encourage Local Governments who are negotiating enterprise agreements to ensure they strictly comply with the enterprise agreement pre-approval requirements in the FW Act.

The amendments also remove the requirement for the FWC to conduct four yearly reviews of modern awards, noting the FWC will still be able to vary an award on its own motion or by application by the parties covered by an award.

The full text of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 can be viewed here.
 
New offsetting rules for casual loading payments

In response to the decision in Workpac Pty Ltd v Skene [2018] FCAFC 131, the Government has varied the Fair Work Regulations 2009. 

The new regulation 2.03A allows an employer to apply to offset payments of identified casual loading amounts where an employee makes a claim to be paid one or more entitlements under the NES. The regulation is intended to apply if the employee has been mistakenly classified as a casual employee during all or some of the employment period. 

All criteria in regulation 2.03A(10) must be met if an employer seeks to make a claim for determination by a court. Regulation 2.03A applies to employment periods that occurred before, on or after 18 December 2018.

The full text of the regulation and the accompanying Explanatory Statement can be viewed here.
 
Casual conversion clause

As a follow up to ER Alert 17/2018, Local Governments to whom the Local Government Industry Award 2010 applies are reminded of the requirement to issue all current casual employees with a copy of the casual conversion clause by 1 January 2019. If a copy of the clause has not yet been issued to casual employees, this should be rectified as soon as possible.

 
If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.