A number of changes instituted by the FW Act will affect the building and construction industry.  Some key elements of the new system are outlined below.

Right of entry

Right of entry provisions remain largely unchanged:
•         permits are still required and must be shown
•         24 hours written notice of entry is still required unless entry is under an OHS law
•         visits can only occur during working hours.
Permit holders must comply with reasonable requests of site management to hold discussions or interviews in a particular part of the premises or to take a particular route to this area. This currently applies under the WR Act. They must also comply with OHS requests.

The FW Act maintains prohibitions on:
•         permit holders hindering or obstructing any person or otherwise behaving in an improper manner at the workplace
•         permit holders misrepresenting their rights under the provisions
•         persons refusing or delaying entry to a permit holder
•         persons hindering or obstructing a permit holder’s exercise of powers.

If a permit holder enters a site without providing 24 hours notice and without a reasonable suspicion that the FW Act has been breached their permit may be suspended or revoked.
Also, entry can only occur with notice and during working hours and entry for discussion purposes can only occur during meal or other breaks.
While the above provisions remain, the FW Act introduces a number of changes to right of entry. A union’s right of entry to hold discussions is no longer dependent on the union having an award or agreement with employees on the site. Instead, the permit holder’s union only needs to be entitled to represent any of the employees on the site.

Also, under the FW Act it is possible for permit holders to inspect non-union member records. However, this is only allowed if the employee provides their consent in writing or if FWA orders access after an application is made.
Additionally, an employer need not give a permit holder access to documents if doing so would contravene a federal or state law, including privacy laws.

Industrial action

Protected industrial action remains legal although new powers have been granted to FWA to halt it.
Various steps, including secret ballots, are required to initiate protected action. FWA retains the power to order protected action be stopped if it causes significant harm to the Australian economy or threatens the safety, health or welfare of all or part of the population. It also has a new power to terminate or suspend action where it is causing significant economic harm to the bargaining party’s employer and employees. FWA also gains a power to arbitrate in these circumstances.

FWA’s start date affects ongoing industrial action. Any ongoing protected action ballot orders, authorisations for industrial action and notifications of intention to take industrial action will lapse on 1 July 2009. This means industrial action started before 1 July 2009 will no longer be protected on or after that date without an order from FWA.

Strike pay

Strike pay will remain prohibited under the FW Act, although there is a change to docking pay in regard to protected action.
For unprotected action the minimum four hours deduction remains. For protected action, under the FW Act the actual time of the dispute may be docked. Additionally, where there are partial work bans employers may dock a proportion of workers’ pay. The reasonableness of the amount withheld is reviewable by FWA.

Freedom of association

Freedom of association provisions under the FW Act remain substantially the same. These provisions enshrine the right of employees and contractors to choose to join or not to join a union or industrial association.
The FW Act streamlines a range of related protections into one part of the legislation. Existing freedom of association protection is transferred into a new set of general protections against discriminatory or wrongful treatment, effective from 1 July 2009, called Workplace Rights.
Coercion and exerting undue influence or pressure for agreement making remain prohibited, as does coercion in relation to taking industrial action.
Making false or misleading statements regarding workplace rights, for example, ‘no ticket, no start’ statements, also remains prohibited.

Agreement making

Many changes to the agreement making system have been introduced under the FW Act including new safety-net arrangements.
Key changes to the system are:
•         Agreements can be for single- or multi-enterprises.
•         ‘Good faith bargaining’ and the passing of a better off overall test (BOOT), which compares a new agreement to an underlying award, underpin the new agreement system.
•         A set of 10 National Employment Standards (NES) will now provide minimum statutory entitlements for all employees.

These include hours of work; annual, personal and long service leave; public holidays; the right to request flexible working arrangements; notice of termination; and redundancy payments. These standards will be detailed in FWA’s Fair Work Information Statements.

Under the FW Act there are no statutory individual agreements – that is, Australian Workplace Agreements – only collective agreements.
FWA will play a more active role in agreement making processes including a general facilitative role in conciliating and mediating parties to reach agreement.
Development of new employer Greenfields agreements is abolished under the FW Act and replaced by union Greenfields agreements in relation to new enterprises. Employers can make Greenfields agreements with unions of their choice provided those unions are entitled to represent a majority of employees covered by the agreement.

Under the FW Act, all employees must be advised of their right to be represented by an agent. If an employee is a member of a union it automatically becomes their bargaining representative unless they decide otherwise.
Under the FW Act, there is a mutual requirement that bargaining representatives recognise and bargain with each other. FWA may make orders enforcing the good faith bargaining process.

Enterprise agreements must be submitted by a bargaining representative to FWA for approval.
Before it can approve an agreement, FWA must be satisfied that the agreement:
•         passes the better off overall test
•         does not exclude the National Employment Standards
•         contains a term about settling disputes
•         does not include any unlawful terms or designated outworker terms
•         specifies a nominal expiry date of not more than four years
•         includes a flexibility term that allows for individual working arrangements
•         includes a consultation term
•         was genuinely agreed to by the employees it covers.

Other changes include an additional provision that FWA consider when approving an agreement whether the group of employees it applies to was fairly chosen. FWA can deal with disputes about variations to agreements but cannot arbitrate. Unlike under the WR Act, FWA is not required to consider the views of the union covered by the agreement when deciding whether to approve the variation.

Other relevant changes

Significant new and enlarged transfer of business arrangements apply under the FW Act.
Also, unfair dismissal provisions will change substantially under the FW Act. The latter changes will be accompanied by the introduction of a Fair Dismissal Code to assist small employers in meeting their responsibilities.

ABCC Release