The Senate is set to consider the Fair Work Amendendment Bill 2013 on Wednesday 19 June 2013.

The Labor Government was able to pass the Bill, including the more controversial right of entry provisions (see Sch 4 of the Bill), through the House of Representatives (House) on 6 June 2013.

The media had foreshadowed that the Bill may not pass the House, since independents had indicated that they would not allow the Bill to pass without bipartisan support. It was expected that the right of entry provisions would be the sticking point. Those provisions:

• allow a permit holder to meet in the occupier’s meal or break room where the two cannot agree on a location for interviews and discussions, and

• set out the circumstances in which the occupier must provide accommodation and transport arrangements for permit holders to premises in remote locations.

However, a division in the House did not eventuate and the Bill passed successfully with additional amendments.

Importantly, the commencement date for the anti-bullying provisions (see Sch 3) was amended to 1 January 2014 rather than a date to be proclaimed (which was expected to be 1 July 2013).

Other amendments in the third reading of the Bill which were not included in the first and second reading are:

• limit and qualify the operation of the workplace bullying provisions in Sch 3 to the Bill in relation to the Defence Force, Australia’s security agencies and the Australian Federal Police

• clarify the Fair Work Commission’s (FWC) ability to conciliate, mediate, express opinions and make recommendations when conducting conferences

• enable the FWC to arbitrate general protections dismissal disputes and unlawful termination disputes, where the parties consent

• deal with procedural matters relating to FWC’s new consent arbitration jurisdiction in relation to general protections dismissal disputes and unlawful termination disputes, including new measures to limit appeals and provide for costs orders in certain circumstances

• align the time limit for making an unlawful termination application (60 days) with the time limit of 21 days that applies for making general protections dismissal and unfair dismissal applications

• allow FWC Members to be concurrently appointed to positions under Commonwealth or territory laws by removing the requirement for such laws to provide for an office to be held by an FWC Member, and

• amend the Fair Work (Registered Organisations) Amendment Act 2012 (ROA Act) to specify the commencement of Pt 2 of Sch 1 of the ROA Act is 1 January 2014 (while ensuring that relevant disclosures for the original period between 1 July 2013 and 31 December 2013 are still required), provide greater clarity and ensure consistency with the ROA Act amendments in respect of disclosure of remuneration, and make related consequential amendments to the ROA Act.

The Supplementary Explanatory Memorandum 1 states that these additional amendments respond to further recommendations of the Fair Work Act Review Panel (delivered in June 2012). The amendments were developed in consultation with the National Workplace Relations Consultative Council and their technical advisers through the Committee on Industrial Legislation, and State and Territory government officials.

The Supplementary Explanatory Memorandum 1 also states that there is no financial impact for these additional amendments.

The first reading Bill and the consolidated third reading Bill (which includes the amendments to the Bill), as well as the Explanatory and Supplementary Explanatory Memoranda are available at the parliament website.

The Fair Work Commission (FWC) has upheld an employee’s application under the Fair Work Act 2009 (Cth) for constructive dismissal. The FWC found that the employer unreasonably refused the employee’s request for part-time work and that the employee was constructively dismissed.

The applicant employee, Ms Hanina Rind (the employee), was employed by the respondent employer, Australian Institute of Superannuation Trustees (the employer), as a database/IT systems administrator. She was employed on a full-time basis and her employment was subject to an enterprise agreement approved by Fair Work Australia (FWA), the Australian Institute of Superannuation Trustees Certified Agreement 2009 (the Agreement).

In February 2009, the employee commenced working from home one day a week to accommodate family responsibilities following the birth of her first child. Sometime thereafter, the employee became pregnant with her second child. Following the birth, she continued on a period of parental leave, which consisted of six weeks paid leave followed by a period of unpaid leave. In late 2012, the employee began discussions with the employer to return to work following her parental leave.

On 28 September 2012, the employee met with the employer to discuss her return to work on a gradual basis. The employee indicated that she wished to return to work starting with two days a week in November, three days a week in December and a possible return to full-time work in January 2013. On 6 October 2012, the employee received a letter from the employer confirming her gradual return to work and that she had agreed to return to full-time work on 21 January 2013. On 15 October 2012, the employee sent an email to the employer stating that she had considered the gradual return to full-time work in January 2013, and indicated that she wished to work part-time only, namely three days a week. On 26 October 2012, the employee again made a formal request to work part-time. On 29 October 2012, the employer refused the employee’s request to work part-time.

The employee indicated that she wanted to continue working part-time as she was not ready to commence full-time work. She indicated that she would be open to flexible working arrangements where she could work from home to accommodate her family responsibilities.

The employer refused the employee’s request on the basis that the employee’s position of database/IT systems administrator was a full-time position and needed to be an onsite position. The employer indicated that while the employee was off on parental leave it had outsourced the role, which had not been successful; for operational reasons, the role essentially could not be outsourced.

On 23 January 2013, the employee sent an email, via her agent, to the employer alleging that the employer had failed to properly explore the job sharing option and that a return to work was no longer a viable option.

On 24 January 2013, the employer wrote to the employee disputing the allegation that it had not adequately explored the option of job sharing, and indicated that it wished to see the employee return to work. The employer proposed three options, that the employee return to her full-time role, that she perform the role three full days and two half days per week or that she perform the role one full day per week. The employer also indicated that the employee agreed to return to full-time work on 23 January 2013 (this was disputed by the employee). The employer also indicated that as the employee had failed to return to work on that date, the employee was taken to have either abandoned her employment or to have resigned without notice.

The employee attempted to resolve the dispute in accordance with the dispute resolution provisions of the Enterprise Agreement. Neither the employer nor the employee referred the dispute to FWA, which was discretionary under the relevant Agreement.

The employment relationship ended as a consequence of the employer’s refusal of the employee’s request for part-time work and the employee deciding that her employment was no longer viable. The employee made an application to the FWC pursuant to s 365 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to her dismissal. The employer disputed the application and made a jurisdictional objection on the basis that the FWC had no jurisdiction as the employee had not been dismissed.

The employee submitted that she was constructively dismissed because there had been a breach of the implied term of trust and confidence in the Agreement. She submitted that the employer unreasonably refused her request to work part-time, which caused the employment relationship to come to an end.

The employer disputed the employee’s application and objected to the application being heard by the FWC on the basis that the employee was not dismissed from her employment and therefore was not entitled to make an application under the FW Act. The employer submitted that the employee was taken to have abandoned her employment or resigned without notice.

Lewin C granted leave for both the employer and employee to be separately represented on the basis that it would enable the matter to be dealt with more efficiently.

It was accepted that the employer had agreed to explore the possibility of the employee returning to work on a part-time basis but that it was conditional upon the employer finding a suitable candidate to share the role. Lewin C found that the employer made the employee’s return to part-time work conditional upon recruitment of another part-time employee. This was unreasonable and amounted to a refusal of the employee’s request to work part-time.

Lewin C found that the employee’s offer to work part-time, namely three days a week, was reasonable and would have adequately replaced the need for an external service provider; the employee could have fulfilled her role as database/IT systems administrator on a part-time basis.

Lewin C assessed whether the employer’s refusal was so harmful, adverse or unfriendly to the contract of employment and the employment relationship that the employee could not be expected to put up with it. Lewin C found that the employee was not required to put up with a persistent and unreasonable refusal of her request to work part-time.

On that basis, Lewin C found that the employer had engaged in conduct that justified the employee treating the employment relationship at an end because of the employer’s unreasonable refusal of the employee’s request to work part-time. Lewin C found that the employee was constructively dismissed and therefore was at liberty to make an application to the FWC pursuant to the FW Act.

Accordingly, Lewin C dismissed the employer’s jurisdictional objection and ordered that the employee’s application be listed for a conference before the FWC.

Hanina Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 (31 May 2013)