Back To The Future – A Synopsis of the New IR Laws
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 passed both houses of Parliament on 2 December 2022 and received Royal Assent on 6 December 2022. It amends workplace relations laws relating to bargaining, job security, gender equity, and compliance and enforcement. These landmark changes are significant, and provides a new regime of industrial relations regulation for employers. Here is a synopsis of the changes.
New Enterprise Bargaining provisions
These new Enterprise Bargaining provisions are complex. It has made an already complex enterprise bargaining framework even more complex. It is difficult to encapsulate all of the changes in the synopsis, however the most important points are as follows:
- Multi-employer bargaining – in essence this will allow Unions and employees to force an employer to bargain for an Enterprise Agreement with other employers with a “common interest”.
- Of further concern is that Unions and employees may force an employer to be “roped-in” to an enterprise agreement of another employer, where there is a “common interest”.
- The processes to be followed in this new multi-bargaining process will vary depending on the whether the employer has an existing EA, has an expired EA or does not have a current EA in place.
- The BOOT test is to be simplified, however an Enterprise Agreement may be subject to a “reconsideration test”, if the circumstances surrounding the calculation of the BOOT at the time of making, changes during the life of the Agreement.
- Most of these provisions do not apply to the building and construction industry and there are some exemptions for employers with less than 20 staff.
These new Enterprise Agreement provisions have a notional commencement date of 7 June 2023, or earlier if proclaimed earlier by the Minister.
Removal of pay secrecy clauses
Many employers have provisions in employment contracts, agreements and policies which state that employees are not to discuss their rate of pay and conditions of employment with other staff.
Such pay secrecy provisions in contracts, agreements and policies are now prohibited and as of now have no effect. However, as of 7 June 2023 it will be an offence under the Act to have such provisions contained in contracts, agreements and policies, with a $63,000 penalty applying.
However, there are no specific provisions which require employers to expressly advise staff that they are free to discuss their pay with others.
New fixed-term contract provisions
Subject to other exemption provisions, fixed terms contracts cannot be made for a period of more than 2 years. This provision will not apply to fixed-term contracts made until 7 December 2023
Increases to Unpaid Wages Cap
The new laws will make it easier to recover unpaid wages by increasing the cap on small claims from $20,000 to $100,000, allowing employees to access the Fair Work Commission rather than courts.
Job ads that advertise for workers below the minimum Award pay rate will be banned.
Provisions around Flexible working arrangements
Whilst these flexible working arrangements are already in place in the Act and Awards, these provisions have now been expanded.
Employers will be legally required to try to reach agreement with eligible employees who request flexible work hours or arrangements, including proposing an alternative if the employee’s request cannot be accommodated on reasonable business grounds.
Where an employer cannot agree to flexible work arrangements requested by the employee, the employee now has the right to have the matter decided by the Fair Work Commission. Further, at the point of advising that the employer cannot agree to the flexible working arrangements, the employer must inform the employee of their rights to have the matter heard by the Fair Work Commission.
There is no exemption for small business for these provisions, and these provisions have a commencement date of 7 June 2023.
Find out more
These are significant changes, and it is important that our clients are aware of these changes, the impacts on their business, and how to respond.
Effective Workplace Solutions will be conducting seminars in February for all of our clients around the changes to these laws, as well as the new sexual harassment laws and the new Family and Domestic Violence Leave laws. So, watch this space and we will soon be providing the dates and venues for these seminars.
Greg Arnold – Director & Principal Consultant
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.