SECURE JOBS AND BETTER PAY LEGISLATION WILL AFFECT EVERYONE

By Chris Delaney, ASIAL Industrial Relations Advisor

The Australian Labor Party went to the 2022 Federal Election with a promise of reforming Industrial Relations to provide workers with secure jobs and better pay.

On the 2nd December 2022, Parliament passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the BP Act). The Act reforms several parts of the Fair Work Act 2009 (the FW Act) including enterprise bargaining, fixed-term contracts and gender equality in the workplace.

The BP Act became law on 6 December 2022 and there are various key dates for the introduction of the changes. What follows is an overview of the changes that will have the most effect on security industry employers.

BARGAINING – THE NEW PROVISIONS COMMENCE ON 6 JUNE 2023

The BP Act introduces major changes to the enterprise bargaining process. It lifts restrictions to multi-enterprise bargaining and increases the Fair Work Commission’s (FWC) powers to resolve bargaining disputes, up to and including by arbitration.

Changes to multi-employer bargaining will have the most impact on security industry employers. Other changes include greater access to the FWC for arbitration and an easier approval process for agreements.

Multi-employer bargaining

The BP Act eases barriers to accessing multiemployer bargaining streams:

• Supported bargaining

This is a stream of multi-enterprise bargaining designed to assist industries with low agreement coverage. The FWC will be able to take into account the widespread pay and conditions in the industry and if employers have common interests. Employees can apply to have themselves and their employer added to a supported bargaining authorisation. However the employees of named employer must vote in favour of the agreement, otherwise the agreement won’t apply to them.

• Single interest employer authorisations

“Single interest employers”, become “common interest employers” who can bargain together for a multi-enterprise agreement. The FWC may still issue a singleinterest employer authorisation using new rules for assessing whether employers are common interest employers. Single interest employer agreements will now be a type of multi-enterprise agreement. Employers with clearly identifiable common interests can more easily bargain together. For employers with 50 or more employees, the employer must prove it is not a common interest employer or its business activities are not reasonably comparable with the other employers. It will be simpler for employers to be added to an existing single enterprise agreement without their consent if a majority of employees vote for it.

However employers who employ fewer than 20 employees cannot be added to a single interest employer agreement or authorisation without their agreement.

The FWC will be able to refuse an application to add a new employer to a single interest employer agreement if less than 9 months have passed since the most recent nominal expiry date of an agreement.

• Co-operative workplaces

The co-operative workplaces stream will allow employers and employees to become covered by an existing multienterprise agreement and to be added to a multi-enterprise agreement.

The BP Act makes it simpler to start bargaining for replacement agreements, meaning that employers who have previously bargained with employees have fewer options to resist bargaining for new agreements.

There is no longer a requirement for a notice of employee representational rights to be issued to commence bargaining for an agreement to replace an existing agreement which had a nominal expiry date within the last 5 years. Nor will a majority support determination be required to force an employer to commence bargaining.

Bargaining will commence on written request from an employee bargaining representative.

FWC dispute resolution powers

The FWC will have strengthened powers to assist in resolving bargaining disputes, including simpler access to arbitration and the power to issue an “intractable bargaining declaration” allowing parties to continue negotiating before proceeding to issue a workplace determination if they fail to reach agreement. A minimum bargaining period of 9 months after the nominal expiry date of any existing agreement, must have passed before the parties can be issued an intractable bargaining declaration.

The FWC can arbitrate bargaining disputes –without the consent of the parties - by issuing a workplace determination after they’ve issued an intractable bargaining declaration.

No party will be able to unreasonably withhold agreement for a proposed enterprise agreement being put to a vote.

Employers in the security industry - where wages are generally no higher than the award - can expect more pressure to bargain and if you have an expired Agreement to be forced to bargain.

One positive is that the definition of small business (for bargaining) is raised to 20 employees (including casual).

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So, if you have an enterprise agreement which has passed its nominal expiry date, consider whether it would better negotiating a replacement agreement now, or wait until the changes to bargaining commence on 6th June 2023.

Employers with an expired Enterprise Agreements are vulnerable and should be reviewing their Industrial Strategy now. In any event employers should get professional advice on their industrial strategy now and not wait until they are faced with demands to bargain..

OTHER CHANGES TO ENTERPRISE AGREEMENTS - COMMENCED ON 7 DECEMBER 2022

The main changes concern the procedural requirements for approval of an agreement, unilateral termination and the Better Off Overall Test (BOOT)

The Act no longer requires a notice of employee representational rights or timeframes for the voting process. Now the FWC must merely be satisfied the employees “genuinely agreed” to the agreement.

Before approving the termination of an agreement, FWC must first decide if:

• It would be unfair to the employees to allow the agreement to continue; or

• the agreement is not likely to cover the employees; or

• if continuing the agreement would threaten the viability of the business or the continued employment of the employees.

The Act requires the FWC to only terminate the agreement if one of the above criteria is met and if the FWC is satisfied that it is appropriate in all the circumstances to terminate it.

This will make it harder for employers to terminate out-of-date agreements.

BOOT - Changes commence on 6th June 2023

The changes to the Better Off Overall Test (the BOOT) provide the FWC with the power to determine the BOOT as a global assessment, instead of a line-by-line comparison, bringing a more reasonable approach to the process.

The FWC will be able to amend proposed agreements itself, to change or remove terms which don’t meet the BOOT removing the need for changes to go back to a vote. The risk of changes being made to the Agreement means that employers need to consider the BOOT process carefully before they submit it for approval.

In any event, advice should be sought on your industrial strategy to make sure you can take the opportunity of the changes while avoiding the new risks that have been introduced.

SEXUAL HARASSMENT AND DISCRIMINATION – RESPECT@WORK – COMMENCE

6TH MARCH 2023

Following on from the Australian Human Rights Commission’s Respect@Work report, the Fair Work Act 2009 now expressly prohibits sexual harassment, providing the FWC and the Federal Court with greater powers to consider claims of sexual harassment and discrimination at work.

Sexual harassment in the workplace is expressly prohibited and a breach of this prohibition can result in claims and civil penalties. Employers have a positive duty to all workers to take reasonable and proportionate measures to eliminate unlawful sexual harassment.

“Workers”, include employees, contractors, subcontractors, outworkers, apprentices, trainees, students and/or volunteers, as well as prospective workers and third parties such as clients and customers. Workers, prospective workers, and persons conducting a business or undertaking will each be able to seek remedies under the FW Act.

The FWC will have the power to:

1. provide avenues for workers to seek a “stop sexual harassment order” to prevent future harassment; and

2. deal with a dispute and order compensation to remedy past harm caused by sexual harassment through mediation and conciliation; and

3. arbitrate on unresolved matters by consent;

4. issue a certificate referring the dispute to the Federal Court or the Federal Circuit and Family Court of Australia within 60 days.

Where an application is made more than 24 months after the alleged contravention it may be dismissed by the FWC. Importantly, applications may be made jointly by multiple aggrieved persons, as well as by a union, as opposed to a single individual.

Also, the Fair Work Ombudsman (FWO) will have powers to investigate and bring civil penalty proceedings against employers or individuals for contraventions of the prohibition on sexual harassment in the workplace.

New definitions will be added to the anti-discrimination provisions of the FW Act including “Breastfeeding”, “gender identity” and “intersex status” in line with other State and Federal legislation.

The employer will be vicariously liable for the actions of employees who are in breach of the prohibition, if the employer did not take all reasonable steps to prevent the sexual harassment.

The FWO will have power to:

• investigate suspected contraventions either proactively or in response to a complaint;

• issue orders to produce documents and records; and

• order compliance notices, enforceable undertakings or litigation seeking civil penalties and/or compensation.

• The maximum civil penalty is 60 penalty units (currently $13,320 for an individual and $66,600 for a body corporate) and there is no cap on compensation orders in the federal jurisdiction.

FLEXIBLE WORK – CHANGES COMMENCE 6TH JUNE 2023

Employers will have extended responsibilities for dealing with requests for flexible work arrangements.

An employer who receives a request for flexible working arrangements must now:

• meet with an employee to discuss their flexible work request; and

WE RECOMMEND THAT EMPLOYERS:

• review policies and procedures to ensure the prevention and prohibition of sexual harassment at work;

• consider the development of a “safe to speak up” culture encouraging workers to raise any grievances or concerns so they can be dealt with by the organisation;

• provide training for employees to understand that discrimination and harassment may result in disciplinary action; and

• conduct a risk assessment to identify exposure to claims

• when considering refusal, discuss alternative changes to the employee’s working arrangements and provide a written response; or

• provide details supporting the reasonable business grounds for refusal and;

• outline the working arrangement that the employer would be willing to make; or

• that there are no such changes the employer could make to accommodate the employee’s circumstances.

Where a dispute arises, the FWC may conciliate as the first step in dispute resolution.

If unsuccessful or urgent the FWC will have the power to “deal with a dispute as it considers appropriate” or through mandatory arbitration.

The flexible work amendments in the Act commence six months after the day the Act receives Royal Assent (on 6 June 2023).

Employers should review policies and procedures on flexible working arrangements to ensure compliance.

SMALL CLAIMS PROCEDURE – COMMENCES 1 JULY 2023

Employees can commence their own legal action in the Federal Circuit and Family Court and State and Territory Magistrates’ Courts or their equivalent, against an employer to recover underpayments, including disputes regarding casual conversion requests. These proceedings are not bound by rules of evidence and can act in an informal matter without regard to legal forms and technicalities. Parties need to obtain leave to be represented.

The changes increase the monetary cap on the amount that can be awarded under the Fair Work Act in a small claims proceeding from $20,000 to $100,000 extending the opportunities for quick remedy. to enable the Court in a small claims proceeding, to award to a successful claimant any filing fees they paid to the Court as costs from the other party.

There may be an increase in claims however, this process may actually reduce the cost and complexity for employers to respond to and settle the claims, as opposed to an employee making the same claim in another court.

We have not included every change arising out of the Secure Work and Better Pay Act 2022. There are other changes that deal with matters such as Fixed Term Contracts, Pay Secrecy, Closing the Gender Pay Gap, Abolition of the ABCC, bringing Registered Organisations under the responsibility of the FWC and other technical changes to the FW Act.

Nor have we attempted to deal with the changes in great depth or detail. Once matters go before Courts and/or industrial Tribunals we will have a much better understanding on how the changes will be interpreted and be able to provide more detailed advice to ASIAL members.

Members should stay in touch with relevant Workplace Relations issues through the ASIAL Website, First Alert, Podcasts, Webcasts and webinars.

If you wish to discuss any of the issues raised in this article contact chris@asial.com.au.