New workplace legislation, proposed by the Australian Government, is about Secure Jobs and Better Pay.
With the introduction of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill) on 27 October 2022, the Federal Government of Australia is pushing ahead with the most ambitious changes to the Fair Work Act 2009 (Cth) (FW Act) in more than a decade.
The Bill is currently going through readings in the Senate. It is yet to be seen if the Bill will pass the Senate and receive royal assent to become an act of the Australian Parliament. However, it is important that employers have an overview of the key elements of the Bill so they are prepared for any changes in the employment or workplace relationship law.
In the 2022-2023 Budget, the Australian Government committed $111.6 million over four years to support the implementation of measures in the Bill so the Bill’s financial impact cannot be underestimated.
The Bill is assessed to be compatible with human rights and to recognise the right to work and safeguard rights in work. It would amend the FW Act and related legislation to get wages moving, boost job security, close the gender pay gap and generally improve working conditions as well as supporting bargaining between employers and employees.
The key elements of the Bill are:
- abolishing the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC) so that the Fair Work Ombudsman (FWO) is the workplace relations regulator for the building and construction industry and ROC’s functions are transferred to the General Manger of the Fair Work Commission (FWC);
- boosting bargaining by removing unnecessary complexity and making the Better Off Overall Test (BOOT) simple, flexible and fair;
- making bargaining for single-enterprise agreements easier and simplifying relevant approval requirements;
- removing unnecessary limitations on accessing the low-paid bargaining stream and the single-interest employer authorisation stream, and providing enhanced access to FWC for both employees and employers;
- ensuring the process for agreement termination is fit for purpose and fair, and sunsetting ‘zombie’ agreements (i.e. agreement-based transitional instruments which provide take-home pay and conditions inferior to those provided by the relevant modern award that would otherwise apply);
- improving job security and gender equality, which includes limiting the use of fixed term contracts (such as a fixed term contract with a period of two or more years or on a contract which may be extended more than once), introducing a statutory equal remuneration principle and prohibiting pay secrecy clauses;
- improving workplace conditions and protections such as stronger access to flexible working arrangements, stronger protection for workers (e.g. victim survivors of sexual harassment), and enhanced small claims procedures for unpaid entitlement recovery;
- setting up of a National Construction Industry Forum as a statutory advisory body to advise the government on work related matters in the building and construction industry; and
- requiring the FWC and FWO to accommodate for the need for guidelines and other materials in multiple languages.
Apart from the proposed key changes, the Bill also includes several new civil penalty provisions. These include penalties regarding:
- non-compliance with flexible working arrangement provisions;
- non-compliance with a term of a FWC order made under new subsection 65C(1);
- non-compliance with a guarantee of termination entitlements;
- breach of the prohibition on contracts including pay secrecy terms;
- limitations on fixed term contracts;
- failure to provide a Fixed Term Contract Information Statement;
- prohibition on sexual harassment in connection with work;
- contravention of a stop sexual harassment order;
- contravention of a compensation order in an arbitrated sexual harassment dispute;
- employment advertisement with a rate of pay that contravenes the FW Act; and
- advertisement of piecework without including periodic rate of pay.
Employers should note that, in relation to fixed term contracts, the Bill would introduce an evidentiary burden of proof on a party who wishes to rely on an exception or other excuse under the FW Act. This reverse onus is for protecting employee entitlements under the FW Act and reducing the risk of non-compliance.
Any employer who is interested to learn more about the Bill or obtain an update of the Bill should contact us. Our employment lawyers are happy to assist you with a review of your employment process in anticipation of the upcoming changes in the employment/workplace relationship law.
Tagged in: Fair Work Act, Fair Work Act 2009