FWC changes to model terms
31 January 2025 marked the deadline for submissions regarding the new draft model terms. APTIA has added to the comprehensive views of the ACCI submission. We hope that the concerns from industry are listened to.
Some of the more concerning changes include substantive changes to the trigger for consultation. The proposed alternative would require consultation prior to a ‘definite decision’ being made. Other proposals include a mechanism for the FWC to hear a dispute prior to an employee attempting to resolved it at a workplace level.
While these model terms will not yet be adopted into the Modern Awards, be alert that they will be held up as the minimum standard by bargaining representatives.
The current timeline shows that adoption of these terms could be as early as 26 February 2025.
A standalone alert will be distributed to members with explanatory information when the terms are released.
Working from home provisions in Clerks Award
The Commission’s 2023-2024 review of Modern Awards resulted in a motion being made by the Commission to develop a ‘working from home’ term in the Clerks Award. This was identified as the most commonly used award under which working from home is most likely to occur.
The term is intended to be one which facilitates employers and employees making workable arrangements for working at home and removes any existing award impediments to such arrangements. The term that is developed may serve as a model for incorporation in other modern awards, with or without adaptation.
The FWC met with industry groups and decided that research should be undertaken prior to any arguments being put to the Commission. One of the objectives of the proposed employer survey is to collect similar data to the 2020 employer survey for the Clerks—Private Sector Award 2020 concerning working from home conducted during the COVID-19 pandemic. This will allow the data to be compared. Each survey will allow the exploration of a broad snapshot of issues, rather than being informed only by issues raised by the parties.
APTIA members should take note. Many of your office employees will be covered by the Clerks Award by default. The impact of these changes will be widespread and are likely to impact you. Once the survey is released, it will be distributed widely to members to complete.
Changes to definition of “small business”
On 5 July 2024, in response to concerns raised by some members of parliament during debate for the enactment of Closing Loopholes No. 2, about whether the small business threshold in the Fair Work Act remains fit for purpose, the Minister for Employment and Workplace Relations, wrote to the Fair Work Ombudsman, requesting a review of the definition of ‘small business employer’ in the Fair Work Act be undertaken.
Section 23 of the Act currently defines a national system employer as a small business employer if the employer employs fewer than 15 employees at a particular time. Dr Karl K would have troubles with this formula at times. Lifting the upper threshold for the number of employees in a small business will see reprieve from the regulatory burden surrounding many provisions in the Fair Work Act. Including, redundancy, unfair dismissal and upper limits on civil penalty provisions.
APTIA is having input into the review and submission of the Australian Chamber of Commerce and Industry and will provide updates to its members regarding progress.
If you want to tell me something that I should know in this space, please let me know.
Road Transport Advisory Group
The Road Transport Advisory Group (RTGA) is yet to make any real dent into the issues of Regulated Workers, issues that mostly impact those covered by the ‘gig economy’ – think UberEats or Amazon. There have been numerous submissions to the FWC regarding the prioritisation of the applications made by the TWU. It’s moving at snail’s pace, with a further 6 months of consultation ahead before we really see any strong movement in the applications.
In response to submissions made by various employer groups that it is most unusual for a party to be making recommendations regarding their own applications, Justice Hatcher said concerns about procedural fairness and conflicts of interest in the consultation process are “somewhat misplaced since the RTAG is not a decision-making body” under the Fair Work Act.
Of note: There has been a variation application under s 158 of the FW Act to vary the Road Transport (Long Distance Operations) Award 2020 (Award) referred to RTAG. The Passenger Vehicle Transport Award (PVTA) falls within the scope of the RTAG. This means that any variation to the PVTA might go through this body to make recommendations to the FWC.
In this case, the application seeks to amend clauses addressing minimum payment and engagement, hours of work and rostering, minimum weekly rates of pay, loading and unloading duties, overtime, annual leave loading, public holidays, dispute resolution and award coverage.
The proposed variations have been the subject of conciliation conferences, but the parties have not reached a consent position on any of them. The applicant and other interested parties have agreed that the application should be referred to the RTAG for advice pursuant to s 40E(4) of the FW Act.
Watch this space.
