This article applies to all organisations.

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth)

Please be advised that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (the Bill) passed Parliament on 2 December 2022 and received Royal Assent on 6 December 2022. The Bill will amend the Fair Work Act 2009 (Cth) (the Act) and related legislation, introducing a suite of changes designed to improve the workplace relations framework.

Background

The explanatory memorandum of the Bill states that the amendments are designed to “get wages moving, boost job security, tackle gender inequality and restore fairness and integrity to Fair Work institutions”. The Bill sets out to achieve this by firstly, introducing the promotion of job security and gender equality into the objects of the Act, which must be taken into account by the Fair Work Commission (FWC) when performing functions or exercising its powers under the Act, and by inserting the below key provisions relevant to subscribers.

Fixed term employment prohibitions

The Bill introduces a new Division under the Act prohibiting an employer from engaging an employee on a fixed term contract with a period of two or more years (including extensions) or on a contract which may be extended more than once. This provision will be a civil remedy provision and employers will be prohibited from engaging in avoidant behaviour (i.e. altering the employment relationship to avoid the prohibition, for example, by terminating an employee’s employment for a short period).

Subscribers should note that the new prohibition will be subject to a number of exemptions listed under new section 333F (e.g. employees engaged to perform specialist tasks, training arrangements, emergency work etc).

Restricting pay secrecy

The Bill introduces new provisions into the Act which restrict pay secrecy terms in employment contracts in an effort to restore equal bargaining power between employers and employees. Under the Bill, employees will be given a positive right to disclose (or not disclose) information about their remuneration and any related terms and conditions of their employment to any other person, as well as to ask other employees about their remuneration and other related terms and conditions of their employment.

The Bill provides that a term of a fair work instrument or contract of employment will have no effect to the extent that it would be inconsistent with these positive rights and expressly prohibits employers from including pay secrecy terms in a contract of employment.

Sexual harassment and discrimination

The Bill inserts a new prohibition on sexual harassment into the Act to implement recommendations from the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report. The new prohibition will apply to workers, prospective workers and persons conducting businesses or undertakings. Employers may also be vicariously liable for acts of their employees or agents.

Notably, this new Part will also create a new dispute resolution function for the FWC, enabling people who experience sexual harassment in connection with work to initiate civil proceedings if the FWC is unable to resolve the dispute.

Importantly, State and Territory laws dealing with sexual harassment will be able to operate concurrently with the new provisions prohibiting sexual harassment in connection with work, including State and Territory anti-discrimination, workplace relations, occupational health and safety, and criminal laws.

Further, the Bill will strengthen the anti-discrimination framework in the Act by adding three further protected attributes; breastfeeding, gender identity and intersex status to the existing provisions that provide protections against discrimination. This new Part will also clarify that ‘special measures to achieve equality’ are not discriminatory terms and therefore not unlawful terms in an enterprise agreement.

Flexible work and equal pay

The Bill will expand the circumstances in which an employee may request flexible work arrangements under the Act, to include situations where an employee, or a member of their immediate family or household, experiences family and domestic violence.

The procedure for dealing with requests for flexible work will also be amended, including by expanding the employer’s obligations to discuss a request for a flexible work arrangement with the employee, to provide reasons for any decision to refuse the request, and if the request is refused, to inform the employee of any changes in working arrangements the employer is willing to make that would accommodate the employee’s circumstances.

Prohibiting employment advertisements with pay rate that would contravene the Act

The Bill inserts a new provision prohibiting national system employers from advertising employment at a rate of pay that would contravene the Act or a fair work instrument. The new provision will require advertisements of piecework to include any periodic rate of pay to which the pieceworker would be entitled. Employers will not contravene the provision if they had a reasonable excuse for not complying.

Enterprise Bargaining Changes

The Bill seeks to simplify the enterprise bargaining process and the approval requirements while maintaining sufficient safeguards for employees. Relevant changes to the process for subscribers are as follows.

Enterprise agreement approval

The Bill will simplify the requirements that need to be met for an enterprise agreement to gain approval from the FWC, most importantly, removing various steps that an employer must currently take according to strict timeframes, e.g. during the voting process, removing the requirement for employers to take all reasonable steps to provide employees with access to a copy of the agreement during the 7 day ‘access’ period and the requirement that employees be notified of details for the vote by the start of the access period. These pre-approval requirements will be replaced by a new, broader requirement under the Bill that the FWC must be satisfied an agreement has been genuinely agreed to by employees covered by the agreement.

Initiating bargaining

The Bill will provide for employees, through a bargaining representative, to initiate bargaining via a written request to their employer for a proposed single-enterprise agreement where the proposed agreement would replace an existing agreement; and the existing agreement’s nominal expiry date is within the past 5 years and the scope of the existing agreement is substantially similar to the proposed agreement.
Subscribers should note that this method for initiating bargaining will not apply to a proposed greenfields agreement or a multi enterprise agreement (i.e. a cooperative workplaces agreement, supported bargaining agreement or single interest employer agreement).

Better Off Overall Test

The Bill will amend the Better Off Overall Test (BOOT), a test used by the FWC in considering its approval of an enterprise agreement. The amendments importantly introduce a new reconsideration process that enables the BOOT to be reassessed during the approval process. This will allow the employer, employees or their representatives to seek a ‘reassessment’ of the BOOT if there has been a material change to working arrangements or where relevant circumstances were not properly considered during the approval process.

Industrial action

The Bill will amend the industrial action provisions of the Act, including by:

• establishing a panel of ballot providers who are ‘pre-approved’ to conduct Protected Action Ballots (PAB);
• requiring the FWC to direct bargaining representatives to attend a conference during the PAB period and enable the FWC to conduct the conference;
• including a new notice requirement for employee bargaining representatives to provide 120 hours’ written notice before protected industrial actions may be taken for a proposed multi-enterprise agreement (excluding co-operative workplace and greenfields agreements).

Varying enterprise agreement to remove employers and employees

The Bill will amend the Act to empower an employer and affected employees to jointly make a variation to a multi-enterprise agreement, so they cease to be covered. The variation will only take effect if approved by the FWC.

Zombie agreements

The Bill will revoke the remaining transitional provisions under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), sunsetting the remaining agreement based transitional instruments, Division 2B State employment agreements and enterprise agreements made during the ‘bridging period’ for the Act.

Abolishing the ABCC and ROC

Finally, the Bill will restore fairness and integrity to workplace relations institutions by:

• abolishing the Australian Building and Construction Commission (ABCC) so that the Fair Work Ombudsman is the workplace relations regulator for the building and construction industry; and
• abolishing the Registered Organisations Commission (ROC) and transferring its functions to the General Manager of the Fair Work Commission, ensuring that workers in the building and construction industry have the same rights as other workers in relation to enforcement of the Act.

Please click here to access the full Bill.