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The Federal Government has tabled in Parliament legislation to amend the Fair Work Act 2009 and related legislation to change Australia’s workplace relations framework. An overview of key changes is provided below.
Read the media statement from Minister for Employment and Workplace Relations the Hon. Tony Burke MP.
The legislation and explanatory memoranda can be found here.
The changes proposed by the government focus around equity and social reforms, promoting job security, and modernising enterprise bargaining. These changes address commitments made during the election campaign to encourage wage growth.
The equity and social reforms and job security amendments are roughly aligned with social norms and therefore unlikely to be opposed by cross-bench Senators. However, changes around multi-enterprise bargaining have triggered concerns from the business community, with some employers threatening to run a multi-million campaign against the amendments.
Senators Pocock and Lambie have expressed concerns about the bill and the government’s intention to legislate all changes this year. The Government will need at least the support of at least one cross-bench senator for the bill to pass Parliament. Senator Pocock has suggested the bill could be split so the less contentious elements could be dealt with quickly and more time given to debating controversial items. For now Minister Burke has rejected this proposal.
The bill is currently before the House of Representatives but has already been referred to the Senate Standing Committee on Education and Employment for a short inquiry. Submissions are requested by 11 November, and the committee is due to report by 17 November 2022. These timelines suggest the government is preparing to move this bill through the Parliament very quickly. However,
AFPA is engaging with the NFF Workplace Committee regarding a collective response to the bill, with advice (as of late last week) to focus on amendments rather than trying to defeat it. Feedback from AFPA members is welcome and encouraged. Please contact Senior Policy Manager Tim Lester on 0437 524 933 or by email tim.lester@ausfpa.com.au.
Following is a high level overview of changes to the Fair Work Act (more detail is available if required):
EQUITY and SOCIAL REFORMS
· Promoting gender equity - Make gender equity and explicit object of the Fair Work Act
· Prohibiting sexual harassment Express prohibition on sexual harassment, modelled on Sex Discrimination Act but broader e.g. extends to prospective employees and conduct of 3rd parties. Broad powers for Fair Work Commission to make orders incl relating to loss or damage (e.g compensation).
· Broadening anti-discrimination Breastfeeding, gender identity and intersex status are added to existing anti-discrimination protections (for general protections purposes).
· Expanding rights to ‘flexible work’
· Prohibiting Advertising Illegal Pay Rates Prohibiting job ads with pay rate that would contravene the Act or Instrument. Piecework must include any periodic rate (e.g. the ‘floor’ in Hort Award).
· Increase cap on the small claims process — Increase the monetary cap on the amounts that can be awarded in small claims proceedings under the FW Act from $20,000 to $100,000.
PROMOTING JOB SECURITY
· Fair Work Act objects to include job security — The FWA’s objects to include job security
· Limiting use of fixed term contracts — Prohibits engaging a worker on a fixed term contract for more than two years and abrogates any termination date beyond 2 years. Exceptions incl seasonal work, specialised tasks, etc.
CHANGE to ENTERPRISE BARGAINING
· Limit termination of EAs — Limits circumstances the FWC can terminate EAs i.e. to avoid unilateral termination by employer as a bargaining strategy.
· Sunsetting of ‘zombie agreements’ — Termination of all ‘agreement based transitional instruments’, State employment agreements, and EAs made during the ‘bridging period’ for the FW Act in 12 months
· Remove technical barriers to EA approval Lift barriers which are created by technical, minor or procedural errors. Prescriptive requirements are removed (e.g. around access periods, notices, and documentation). The FWC must instead be satisfied that an EA has been genuinely agreed to, and will issue a ‘statement of principles’ of what it will expect.
· Greater flexibility in the ‘Better Off Overall Test’ assessments
· FWC to correct errors in EAs — Enable the FWC to correct obvious errors in EAs.
· Unions can initiating bargaining — An employee representative can require an employer to commence bargaining where an EA has expired within 5 years, provided the new EA would have a substantially similar scope
· FWC to address ‘Intractable Bargaining’— Where there are no reasonable prospects of reaching agreement, the FWC can issue an “intractable bargaining declaration” which leads to arbitration.
· Remove obstacles & restriction on Protected Action Ballots (PAB) Process - Establishment of a panel of ballot providers who are ‘pre-approved’ to conduct Protected Action Ballots. Empower the FWC to require bargaining representatives to attend a conference during the PAB period (14 days). Extend the period within which industrial action can commence by 3 months.
· Enable unions to compel employers to engage in multiple enterprise bargaining
Employees (or employers) may seek FWC authorisation requiring multiple employers with ‘common interest’ to bargain together if a majority of employees agree.
Common interest includes consideration of geography, location, regulatory regime, industry, pay and conditions. Could include supply chains, etc?
Employees majority is across entire all affected businesses, not each business/workplace.
Bargaining representatives can apply to add or remove an employer from an authorisation.
Employees can take industrial action in support of multi enterprise bargaining.
All employers are required to comply with bargaining obligation (attending meetings, responding to proposals, disclosing information).
There are small business exemptions to Single Interest Employer Authorisations stream (the major multi-enterprise stream) but not to the Supported bargaining (low paid workers stream)
SUNDRY
· Abolition of the Registered Organisation Commission — relocate its functions/power to the Fair Work Commission
· Abolition of the Building and Construction Commission.
· Prohibiting pay secrecy — Positive (workplace) right to ask about and disclose pay and other conditions of employment (and prohibition on including secrecy terms in contracts).
· Updating Workers’ Compensation presumptive liabilities for firefighters
With thanks
Tim Lester
Australian Forest Products Association
Senior Policy Manager
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