Co-authored by Jason Vo
The House of Representatives has passed the Australian Government’s Secure Jobs, Better Pay Bill (the Bill) following the Albanese Government’s first Federal Budget (the Budget). The Lower House agreed to the Third Reading of the Bill following amendments proposed by the Government and crossbench MPs.
The aims of the Secure Jobs & Better Pay Bill
The Bill will amend the Fair Work Act 2009 (Cth) (FW Act) and a number of other industrial relations laws to deliver the Government’s industrial relations reform objectives as developed by the September Jobs and Skills Summit (the Summit) and set out in the Budget.
Abolition of the Registered Organisations Commission (ROC) and the Australian Building and Construction Commission (ABCC)
The ROC and ABCC will be abolished. The ABCC’s role in enforcing the FW Act in the commercial building and construction industry will be transferred to the Fair Work Ombudsman (FWO). The ROC’s role in regulating employer and employer associations will be transferred to the Fair Work Commission (FWC).
Establishment of National Construction Industry Forum
A new statutory advisory body will be established, the National Construction Industry Forum (the Forum), which will consist of representatives from government, unions and businesses. First introduced at the Summit, its aim is ‘to address issues such as mental health, safety, training, apprentices, productivity, culture, diversity and gender equity’ in the construction industry’.
Expanding the objects of the FW Act
The objects of the FW Act will be expanded to include the objects of job security and gender equity.
Establishing the Pay Equity Expert Panel and the Care Community Sector Expert Panel
The Pay Equity Expert Panel and the Care Community Sector Expert Panel will be established to determine equal remuneration cases and particular Modern Award cases.
Prohibition of pay secrecy, sexual harassment in connection with work and advertising of pay rates in breach of the FW Act
Pay secrecy clauses in employment contracts will be prohibited. The maximum civil penalty will be $16,500 for a breach of the prohibition and up to $165,000 for a serious contravention. These penalty amounts will apply from 1 January 2023, when the increase in Commonwealth penalty units from $222 to $275 in line with inflation commences.
The existing prohibition of sexual harassment regime and stop sexual harassment order jurisdiction will be expanded to broadly apply to employees, prospective workers and persons conducting businesses or undertakings. The Commonwealth will be able to be held vicariously liable for breaches by defence force members.
Employers will be prohibited from advertising jobs at rates of pay which would be in breach of the National Minimum Wage, a Modern Award or the FW Act.
Expansion of the FW anti-discrimination regime
The existing anti-discrimination regime in the FW Act will be expanded to protect workers against discrimination on the protected attributes of breastfeeding, gender identity and intersex status.
Limiting fixed term contracts
Employers will be prohibited from hiring an employee on a fixed term contract with a period of 2 or more years (including extensions), or a contract with options to extend more than once.
The circumstances in which an employee may request flexible work arrangements will be expanded to include circumstances where an employee or a member of their immediate family experience family and domestic violence.
The procedure for dealing with requests will be amended to require employers to discuss the request with the employee, provide reasons for refusal and changes the employer is willing to make.
Enterprise agreements, bargaining and disputes
The FW Act will be amended to clarify that the circumstances in which the FWC can terminate an EA by application of one party will be limited.
The pre-approval requirements for EAs will be simplified, with some deadlines removed such as the existing 7-day access period which requires employers to take all reasonable steps to provide employees with access to the EA before the start of the voting process.
The process for initiating enterprise bargaining will be simplified to allow an employee to initiate bargaining via a representative by making a written request to the employer where qualifying conditions are met.
The application of the Better Off Overall Test (BOOT Test) will be amended to empower the FWC to amend or remove terms which would not meet the BOOT Test, enable parties to seek the reconsideration of the BOOT Test where the EA provides for different terms and conditions for new employees, and where there has been a material change in working arrangements.
The FWC will be empowered to correct obvious errors in EAs.
A new intractable bargaining declaration scheme will be introduced to assist parties to resolve disputes, with a period of good-faith bargaining required before an intractable bargaining declaration can be issued by the FWC.
The low-paid bargaining regime will be amended to create the supported bargaining stream to support bargaining at the single-enterprise level and amend the process to require the FWC to consider whether it is appropriate for parties to bargain together.
Employers with common interests will be allowed to bargain together under a single interest employer authorisation (SIE authorisation) in particular circumstances. Employee bargaining representatives will be able to apply for a SIE authorisation where there is a majority support of employees.
The FWC will be empowered to exempt an employer from the single interest stream where the employer has had a history of bargaining for six months after the expiry of its agreement.
Under the new single interest and supported bargaining streams, an employer cannot be covered by a multi-employer agreement without the support of either a majority of its employees or the employer.
Multi-enterprise agreements where a supported bargaining authorisation is not in operation will be known as cooperative workplace agreements. The new scheme will allow a person to be excluded, and employers and employees who are not covered to apply to become covered under an existing agreement.
A panel of ballot providers who are pre-approved to conduct Protected Action Ballots (PAB) will be established. The FWC will be empowered to require bargaining representatives to attend a conference during the PAB period. The notice period for the commencement of industrial action in relation to a single interest employer agreement or supported bargaining will be 120 hours. Industrial action will only be able to be taken during the PAB period.
Expanding the small claims process
The cap on small claims proceedings will be increased from $20,000 to $100,000. The court will be empowered to award a successful claimant filing fees paid as costs from the other party.
Workers’ compensation presumptions for firefighters
The qualifying period for oesophageal cancer will be reduced from 25 to 15 years, the list of prescribed diseases will be expanded to include malignant mesothelioma, and the firefighter provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) will be extended to firefighters employed by the ACT.
Changes will be communicated in community languages
The changes to the industrial relations system will be communicated in community languages, including communications by the FWC.
The Bill is awaiting review by the Senate Education and Employment Legislation Committee inquiry which will deliver its report on 17 November 2022. Negotiations in the Senate may see further amendments moved.
Coleman Greig Lawyers will keep you abreast of the Bill’s progress and its final form when passed.
If you have any questions regarding this article, or require assistance with your own employment law matter, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who will be more than happy to assist you.
Coleman Greig Lawyers provides this material as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.