Assisted by Jason Vo
On 6 December 2022, the Secure Jobs, Better Pay Bill (the Bill) received Royal Assent.
The industrial relations reform was introduced by the Government with the aims of lifting wages and encouraging collective bargaining, particularly in low-paid sectors.
You may have read our summary on the Bill as it passed the House of Representatives. Since then, the Government made amendments to the legislation to secure its passage in the Senate. Read on for our summary of the final amendments made to the legislation.
Civil construction carved out of multi-enterprise bargaining
The civil construction sector is carved out of all streams of multi-enterprise bargaining.
However, the asphalt industry does not enjoy the same carve out.
Preserving the Better Off Overall Test (the BOOT)
Prospective employees will no longer be removed from assessments of the BOOT. The Fair Work Commission (the FWC) is empowered to have regard to “reasonably foreseeable employees”, make determinations on whether particular working arrangements are reasonably foreseeable, and amend an agreement with retrospective effect if the agreement does not pass the BOOT as part of the new reconsideration process.
Expansion of small business carve out
A small business which employs fewer than 20 employees, excluding seasonal workers and irregular casuals from the headcount, cannot be added to an agreement under the single-interest multi-employer bargaining stream without its consent.
Single interest employer scheme
The reasonable comparability element is added to the common interest test for the single interest employer stream, which provides that the operations and business activities of common interest employers must be reasonably comparable.
For employers with 50 or more employees, the onus is on the employer to establish that its operations or business activities are not reasonably comparable with other employers.
The FWC is conferred with the discretion to refuse an application by a union to add a new employer to a single interest employer agreement or authorisation scheme if less than 9 months have passed since the most recent expiry date of an agreement on the day of the FWC’s decision to approve the application.
The period during which a single-interest multi-enterprise bargaining authorisation can be granted has increased from 6 to 9 months.
Supported bargaining stream (previously referred to as the low-paid bargaining stream)
The Minister is empowered to make a declaration that a particular industry, occupation or sector is eligible for entry into the supported bargaining stream.
Voting on a multi-enterprise agreement
The FWC is empowered to require a multi-enterprise agreement to be put to a vote if it is satisfied that a union’s failure to provide their written agreement is unreasonable.
Minimum bargaining period for an intractable bargaining declaration
The minimum bargaining period for an intractable bargaining declaration has been increased from 6 to 9 months.
Factors for workplace determinations expanded
When deciding which terms to include in a workplace determination, the factors which the FWC must take into account has expanded to include the significance to the employers and employees of any arrangements or benefits in an enterprise agreement.
Flexible working arrangements
Pregnant employees are afforded the right to request a flexible working arrangement.
Conciliation is required before arbitration for disputes concerning flexible working arrangements unless there are exceptional circumstances.
The FWC continues to be able to make orders where an employer has not adequately responded to a request for a flexible working arrangement.
Recording of paid family and domestic violence leave on pay slips
The Fair Work Act (the Act) has been amended to enable regulations to be made prescribing requirements providing for paid family and domestic violence leave to be recorded on pay slips as ordinary hours worked, training, overtime or allowances, rather than as a type of leave such as “miscellaneous leave” or “other leave”.
Should such a regulation be made, an employer will not breach the Act if it complied with such a regulation by providing an employee with a pay slip which records paid family and domestic violence leave as a period of work.
The significance of this provision is that the Act prohibits employers from providing a pay slip that they know to be false or misleading.
The National Construction Industry Forum
In addition to its other functions, the new National Construction Industry Forum will be required to advise the Government on measures to ensure contractors in the construction industry are paid accurately and in a timely manner.
Workers compensation for firefighters
Firefighters, including volunteer firefighters, will be able to make a workers compensation claim for seven additional cancers, including women’s reproductive cancers.
If you have any questions regarding this article, or require assistance with your own employment law matter, please contact Coleman Greig’s Employment Law team.
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.