Workplace Relations: What’s in Store for 2023

OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

With a change of government both federally and in South Australia, the respective Labor parties have already signalled their intentions to make workplace relations a key platform for change. 2022 has seen some of those legislative changes already pass through the federal parliament, with the impacts of those changes to commence from early next year.

As we move into the Christmas and New Year Period and look towards 2023, we look at some of the changes that will occur on the workplace relations front and the implications of some of those issues for the hotel industry.

SECURE JOBS, BETTER PAY BILL

The federal government’s Secure Jobs, Better Pay Bill has been well documented providing a lot of airtime across the national news in the second half of 2022.

The Albanese Government back in October sought to make significant changes to the existing Australian workplace laws through the introduction of their Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill). The Bill sought to amend the Fair Work Act and related legislation in areas such as multiemployer and low paid enterprise bargaining, reducing the gender pay gap, new sexual harassment laws, abolition of the Registered Organisations Commission, equal remuneration, abolition of the power of pay secrecy clauses, new anti-discrimination laws, changes to the use of fixed term contracts and changes to flexible working arrangements.

A Senate inquiry was undertaken with the opportunity for interested stakeholders to provide feedback on the Bill in November. The AHA nationally prepared a submission for the Inquiry seeking changes across a whole range of areas including the proposed changes to multi-employer bargaining, flexible work arrangements and the proposed sunsetting of “Zombie” agreements.

Following negotiations with Independent Senator David Pocock, the Bill secured passage through Parliament with the Government settling on a range of amendments to their original bill which includes:

• Small businesses with fewer than 20 employees based on headcount (and excluding seasonal workers and other irregular casuals) will be excluded from the single-interest multi-enterprise bargaining stream.

• The Government will undertake a statutory review no later than 2 years after the passage of the Bill.

• The ‘grace period’ during which a single-interest multi-enterprise bargaining authorisation can be granted will change from six months to nine months.

• Introducing a new reasonable comparability threshold into the common interest test.

• Introducing new safeguards for businesses that have fewer than 50 employees based on headcount wanting to exit multi-employer enterprise bargaining and with the onus of proving a common interest on the applicant for these businesses.

• Increase the ‘minimum bargaining period’ for the purpose of intractable bargaining declaration from six to nine months.

• Require conciliation to take place before arbitration over flexible working arrangements unless there are exceptional circumstances.

• Give the Minister a new power to declare an industry or occupation eligible for the supported (low paid) bargaining stream.

The changes sought in this Bill will have an impact for the hotel sector here in South Australia in 2023, particularly in areas such as multi-employer bargaining, sunsetting of ‘zombie” agreements and changes to flexible working arrangements. The AHA|SA will continue to provide up to date information and education on how these changes will impact hotels in 2023.

FAMILY & DOMESTIC VIOLENCE LEAVE CHANGES

On 28 July this year the Federal Government introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill). The Bill was for an Act to amend the Fair Work Act 2009 (Cth) (Fair Work Act) to provide for 10 days of paid family and domestic violence leave (FDVL) and for related purposes. The Bill passed through Parliament on 27 October 2022, following some amendments from the Senate.

The new FDVL changes amends the current FDVL provisions contained in the National Employment Standards under the Fair Work Act. The new amendments commence from 1 February 2023 for employees employed other than by a small business, and 1 August 2023 for small business employees.

The key changes include:

• Provision for full-time, part-time and casual employees to access up to 10 days of paid FDVL per 12-month period of employment.

• Extension of the current definition of family and domestic violence to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.

• Employees will be paid for any FDVL based on their full rate of pay, which for full-time and part-time employees will be worked out as if the employee had not taken the period of leave and for casual employees, they will need to be paid at their full rate of pay worked out as if the employee had worked the hours in the period for which the employee was rostered. Now that these new amendments have passed through Parliament, employers can now prepare for the changes to FDVL in 2023. Preparation should include,

• Updating policies and procedures to reflect the new paid leave provisions and ensuring that procedures are clear on how an employee can access such leave and any evidence required by the employer; and

• Ensuring that payroll systems are updated to provide for paid FDVL.

RESPECT@WORK BILL

On 27 September this year the Federal government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 into Parliament to implement a further 7 recommendations from the Respect@Work Report produced by the National Sex Discrimination Commissioner, Ms Kate Jenkins. Following some amendments in the Senate, the Bill passed through both houses on 28 November.

The Respect at Work Bill will make a number of amendments to the federal Sex Discrimination Act and Australian Human Rights Commission Act with a number of those amendments coming into immediate effect. Key amendments included:

• Positive Duty – Amending the Sex Discrimination Act to provide a positive duty for employers/PCBU’s to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct such as sexual harassment.

• Hostile Work Environment – Amending the Sex Discrimination Act to introduce an express prohibition to protect people from hostile workplace environments on the ground of sex. The protection will not require the conduct is directed at a specific person, but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex.

• Inquiries into systematic unlawful discrimination – Amending the Australian Human Rights Commission Act to confer on the AHRC the ability to inquire into any matter that may relate to systematic unlawful discrimination or suspected systematic unlawful discrimination.

• Costs – Insert costs protections into the AHRC Act to provide greater certainty in relation to the cost of pursuing legal action.

Considering these amendments, the new year will be a perfect time for businesses to review their policies and procedures on sexual harassment and antidiscrimination to ensure they are pushing their positive duty in the workplace. Hotels will also need to ensure that in 2023 they continue to promote professional development and training of staff on understanding the complaint and grievance process and what constitutes appropriate behaviours in the workplace.

INDUSTRIAL MANSLAUGHTER LEGISLATION – SA

One of the election commitments from the South Australian Labour Government back in March this year was the introduction of new state industrial manslaughter legislation to make industrial manslaughter a criminal offence.

The Attorney-General Hon Hyam Maher MP has now published a consultation draft of a bill to introduce into Parliament, the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022.

The SA Government is seeking to introduce the following changes as part of this proposed legislation:

• To make an industrial manslaughter offence apply where a person has been either reckless or grossly negligent in conduct which breaches a work health and safety duty under the WHS Act and which results in the death of an individual.

• Provide for a maximum penalty of 20 years imprisonment for individuals and $15 million for body corporates if found guilty.

• An alternative verdict of guilt for a Category 1, Category 2 or Category 3 offence would be available if the trier of fact is not satisfied that a person is guilty of industrial manslaughter but is satisfied the person is guilty of a lower tier offence under the WHS Act.

• SafeWork SA would be investigating any alleged industrial manslaughter and any prosecutions would be tried in the South Australian Employment Court, as per the current arrangements under the WHS Act.

Whilst workplace deaths in the Hotel sector have thankfully been few and far between over the years, this proposed legislation is a timely reminder for hotels to review their work health and safety policies and practices in 2023, to ensure they are compliant with the WHS Act and Regulations. “...the new year will be a

WAGE THEFT LEGISLATION – SA

The South Australian Government has also committed to introducing wage theft legislation as one of their election commitments.

Proposed wage theft legislation has not yet been tabled for consultation; however the Attorney General has indicated that such proposed legislation would likely be introduced into parliament in the second half of 2023.

We are aware that the legislation would seek to create criminal penalties for persistent and deliberate underpayments of employees, including wages and superannuation. The proposed laws are aimed at specifically targeting the intentional and dishonest underpayment of employees.

For Hotels, 2023 provides an opportunity to ensure that all their record keeping requirements of employees are being maintained and updated wherever necessary and they continue to pay wages and entitlements in line with the respective industrial instruments.

2023

2023 will be a big year as the legislative changes sought by the respective government’s come into effect. The AHA|SA WR team will continue to update members on these changes and members should not hesitate to consult the AHA|SA on any of these issues.