The Albanese Government’s IR Reforms Commence with Further Changes on the Horizon!

OWEN WEBB - AHA | SA WORKPLACE RELATIONS MANAGER

The Albanese Government’s first tranche of significant workplace relations reforms began on 6 December 2022 with the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Better Pay Act).

The Secure Jobs Better Pay Act makes several amendments to the Fair Work Act 2009 (Cth) (FW Act), Fair Work (Registered Organisations) Act 2009 (Cth) and Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (FW Transitional Provisions Act). The amendments commence at various stages across a 12 month transitional period, and they make changes to a broad range of areas including enterprise agreements and bargaining, sexual harassment and anti-discrimination, abolition of the Registered Organisations Commission and Australian Building and Construction Commission, compliance and enforcement and job security and gender equality measures.

In this article we provide an overview of some of the changes that will have the most impact for the hotel sector as well as briefly touching on the second tranche of reforms that the Government has on the agenda for 2023. (Note: We have not listed all the areas of amendment from the Secure Jobs Better Pay Act).

The following amendments come into operation from:

7 DECEMBER 2022

• Prohibiting pay secrecy – The FW Act has been amended to prohibit pay secrecy clauses in employment contracts and provide employees with a positive right to be able to disclose or choose not to disclose their pay details. A pay secrecy clause will have no effect if it is contained in a contract of employment entered into from 7 December 2022 onwards. If a contract of employment entered into prior to 7 December 2022 has pay secrecy terms, then an employee and employer will need to abide by those terms until such time as the contract is varied or a new contract is entered into.

• Strengthening antidiscrimination protectionsThe FW Act has been amended to prohibit an employee from being discriminated against on the basis of gender identity, intersex status, and breastfeeding. These protected attributes were not previously listed in the FW Act

• Sunsetting of “zombie” agreements – Amendments have been made to the FW Transitional Provisions Act to automatically “sunset” (terminate) collective agreements and enterprise agreements that were made prior to the commencement of the FW Act and during the bridging period of 1 July to 31 December 2009. These “zombie” agreements will automatically terminate at the end of 6 December 2023, unless an application has been made to the FWC to extend the agreement.

• Termination of enterprise agreements after nominal expiry date – The FW Act has been amended to include new measures in relation to the termination of enterprise agreements when they are passed their nominal expiry date. To terminate an agreement after it’s expiry date the FWC will need to consider the views of any relevant employers, employees and unions covered under the agreement. The FWC will also need to take into consideration a range of factors including whether the continued operation of the agreement would be unfair to employees covered by the agreement, whether the agreement does not, and is not likely to, cover any employees, and whether the continued operation of the agreement would pose a significant threat to the viability of the employer’s business. The FWC will also need to consider whether bargaining is occurring for a proposed new agreement and whether termination would adversely affect the employee’s bargaining position, and whether termination reduces the risk of potential job losses. If an application is opposed by any party, then an application to terminate under sections 225 and 226 of the FW Act will need to be heard by a Full Bench of the FWC.

7 JANUARY 2023

• Job advertisements – Job advertisements must not include rates of pay that would breach the FW Act or an industrial instrument such as an award or enterprise agreement.

6 MARCH 2023

• Strengthening sexual harassment protections – The FW Act has been amended to include new provisions in relation to the prohibition of sexual harassment in the workplace. Employees will be able to take disputes in relation to sexual harassment to the FWC for conciliation or mediation.

6 JUNE 2023 ( OR AN EARLIER DATE TO BE FIXED BY PROCLAMATION )

• Changes to the BOOT – The FW Act has been amended to make changes to the Better Off Overall Test (BOOT), the test which is used to determine whether the employees covered by an enterprise agreement and better off overall in comparison to the relevant modern award. Changes to the BOOT include more of a global assessment as to whether employees are better off overall rather than a line-by-line assessment, greater consideration of the views of unions and employers where they share a common view, looking at patterns of work or types of work that are reasonably foreseeable, and an ability of reassessment against the BOOT if there were circumstances that were not properly considered during the approval process.

• Cooperative Workplaces Bargaining Stream – The multiemployer bargaining stream of the FW Act has been amended and renamed the Cooperative Workplaces Bargaining Stream. It enables businesses to voluntarily opt-in to an existing agreement with the support of a majority of employees at the workplace. This is seen as a means of trying to get more small businesses access to enterprise agreement making.

• Single Interest Bargaining Stream – The single interest bargaining stream in the FW Act has been amended which will make it easier for unions and employers to enter into multiemployer agreements. Unions will be able to apply for a single interest employer authorisation to cover two or more employers. The FWC can make the authorisation if they are satisfied that the employer consents to the application or there is a majority support of employees of each employer who want to bargain for the proposed agreement. The FWC will also need to consider a range of other matters, most notably whether employers are “common interest” employers by looking at the nature of the businesses, the terms and conditions of employment of the employees in those businesses, geographical location and the regulatory regime they operate under. The FWC will also need to consider the public interest test and the views of the employers and unions.

7 JUNE 2023

• Flexible working arrangements – The FW Act has been amended to expand on the flexible working arrangements provisions. There is an expansion of the categories of employees that will have access to flexible working arrangements to include pregnant employees and where employees or members of the employee’s immediate family or household are experiencing family and domestic violence. The FWC’s powers have also been strengthened such that they will now be able to conciliate, mediate and arbitrate any disputes that an employee may wish to lodge against their employer for an employer’s refusal of their flexible working arrangement request.

• Unpaid Parental Leave –The parental leave provisions contained in the National Employment Standards has been amended. Where an employee taking 12 months unpaid parental leave requests to take a further period of 12 months unpaid parental leave (24 months in total), amendments have been made to place increased requirements on an employer who refuses to agree to the request. The FWC also has increased powers to be able to conciliate, mediate and arbitrate any disputes about requests for extended period of unpaid parental leave.

6 DECEMBER 2023 ( OR AN EARLIER DATE TO BE FIXED BY PROCLAMATION )

• Fixed Term Contracts – The FW Act has been amended to include limiting the use of fixed term contracts for the same role to a maximum of 2 years (including renewals) or two consecutive contracts, whichever is the shorter. There are some exceptions to these changes including for apprentices and trainees. Employers that enter a fixed term contract with an employee will also need to provide the employee with a Fixed Term Contract Information Statement which will be developed by the Fair Work Ombudsman. The FWC will also have powers to resolve disputes in relation to fixed term contracts.

SECOND TRANCHE OF WORKPLACE RELATIONS REFORMS

The Federal government has put out for consultation a range of measures on further amendments to the FW Act to gain feedback from interested parties, with the aim of these measures commencing in 2023. Proposed changes of significance to the hotel sector include:

• Inserting a right to superannuation in the National Employment Standards. This will provide a right for employees to directly pursue any unpaid superannuation contributions from an employer. The Fair Work ombudsman would continue to be able to pursue unpaid superannuation in a complimentary role to the ATO.

• Reform of the four yearly review of superannuation default fund provisions in modern awards. The proposal would involve the FWC having the power to review and, where necessary, vary default superannuation fund terms in modern awards.

• Clarify the application of Fair Work Act protections to temporary migrant workers. Providing a clarifying amendment to the Fair Work Ac, confirming that temporary visa status does not alter the application of the Fair Work Act.

• Changes to flexibility around unpaid and paid parental leave provisions. Includes enabling parent to access the full paid parental leave entitlement flexibly down to a single day. At present it needs to be taken as a minimum 12-week block with 30 days of flexible paid parental leave, they are seeking to make the whole period flexible.

WORKPLACE GENDER EQUALITY AMENDMENT ( CLOSING THE GENDER PAY GAP ) BILL 2023

Under the Workplace Gender Equality Act 2012 (Cth) it is mandatory for all relevant employers to provide an annual report for the previous 12 month period on their workforce data to the Workplace Gender Equality Agency. A relevant employer is one with 100 or more employees either as a standalone business or as a corporate structure across entities. The report opens on 1 April each year and needs to be submitted by 31 May each year.

Currently the data provided by individual employers is not made public. Through the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023 the government is, subject to certain safeguards, seeking to make information contained in individual employers reports available to the public for publishing.