Further amendments on the horizon

Two further bills were introduced to parliament on 11 September 2017 seeking to amend the Fair Work Act 2009, taking the total number to 13.

The Fair Work Amendment (Terminating Enterprise Agreements) Bill 2017 was introduced by independent member Andrew Wilkie to “prevent the Commission from terminating any agreement [that had passed its nominal expiry date] if it would result in less favourable terms and conditions for any employee” and “invalidate any decision of the Fair Work Commission to terminate an agreement since 22 April 2015 if the decision would not have met the new requirements in the bill”. Leaving aside the issues of retrospective legislation and ignoring the separation of powers doctrine upon which our democracy is based, the Bill seems short sighted. If passed, the Bill may discourage collective bargaining (one of the stated purposes of the Act) and make it near impossible for employers to terminate agreements that are no longer relevant and/or result in an unlevel playing field with competitors.

The Fair Work Amendment (Recovering Unpaid Superannuation) Bill 2017 introduced by the Nick Xenophon Team seeks to “strengthen the operation of Australia’s superannuation system” from 1 July 2018 by:

  • Including superannuation contributions as a separate National Employment Standard, enabling the Fair Work Ombudsman to exercise its powers to recover unpaid superannuation and allowing employees to take their own legal action;
  • Requiring employers to provide notice of when contributions are made and are not made for each pay period;
  • Removing the exemption that currently exists for employers that allows them to not make superannuation contributions to employees who are paid less than $450 by way of salary or wages in a calendar month, for that month;
  • Removing restrictions on choice of superannuation fund under certain industrial instruments;
  • Requiring the Commissioner for Taxation to conduct a review of employers’ compliance with their superannuation obligations and include recommendations to improve compliance;
  • Creating a duty for trustees of super funds to notify the members (within 28 days and by any means) when it could reasonably have expected the member to have received a contribution from an employer, but did not; and
  • Expanding the information that superannuation providers are required to provide to the Commissioner for Taxation in their annual Member Contribution Statements.

While the purpose of the legislation appears sound, the statement in the Explanatory Memorandum that the Bill “will have no financial impact” appears fanciful.

Robertson Hyetts will keep readers informed of the passage of the Bills through the federal parliament. For further information, please contact us on 03 5434 6613