Changes to the Fair Work Act

By George Haros, Will Marshall and Lauren Chappill of Gadens

On 6 June 2023, a number of key changes to the Fair Work Act 2009 (Cth) (Act) commenced. Notably the sunsetting of zombie agreements, changes to the bargaining and approval process for enterprise agreements and changes to multi-employer enterprise agreements.

Sunsetting of zombie agreements

Enterprise Agreements that were approved prior to 2010 are colloquially been known as zombie agreements Unless an application is made to the Fair Work Commission (FWC) the remaining zombie agreements will be automatically terminated on 7 December 2023.

Prior to 6 June 2023, employers with employees that are still covered by a zombie agreement are required to give them written notice of the zombie agreement changes, failure to do so may result on civil penalties for employers.

Changes to the enterprise bargaining process

From 6 June 2023, the approval requirements for enterprise agreements will now be simplified.

The FWC has issued the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 on 12 May 2023. This statement provides guidelines on what the FWC should consider when deciding whether or not to approve an enterprise agreement.

The approval of enterprise agreements will depend on whether the FWC is satisfied that covered employees have genuinely agreed to it. Where an agreement has union endorsement, this may result in enterprise agreements being approved more readily under these changes. Further, the Better Off Overall Test (BOOT) has been simplified.

Now the FWC is required to be satisfied that an enterprise agreement passes a global assessment that employees are better off. The line-by-line comparison between the proposed agreement and relevant modern award will now no longer be applicable.

Multi-employer agreements

From 6 June 2023, three new bargaining streams will be introduced, the supported bargaining agreements, single-interest agreements, and cooperative workplace agreements streams Broadly speaking, these allow for bargaining for multi-employer agreements.

The most notable stream is the single-interest agreements stream that allows the FWC to issue authorisations that allow bargaining representatives to group employers together to bargain for a single multi-employer agreement. This authorisation can be made by the FWC with, or in certain circumstances, without the consent of applicable employers.

For more in-depth information please see the following link to the article regarding these changes on Gadens' Website. Further, Gadens has also published an infographic checklist for you to download that outlines the key dates and changes.