On 27 October 2022, the Albanese Government introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Secure Jobs, Better Pay Bill). The omnibus Bill reflects the most significant employment and industrial relations reform for some considerable time.
The proposed changes under the Secure Jobs, Better Pay Bill are far reaching, and we are currently working our way through the potential implications of those changes. We will be providing further updates regarding specific aspects of the proposed changes over the next few weeks.
The changes proposed under the Secure Jobs, Better Pay Bill include:
— changes to requests for flexible working arrangements. The Bill imposes “strengthened obligations” on employers when considering requests for flexible working arrangements, and provides for a dispute resolution process (including arbitration by the Fair Work Commission) to be initiated where an employer refuses a request or does not respond to a request within 21 days;
— limitations on the use of fixed term contracts. Under the Bill, fixed term contracts for the same role are limited to two consecutive contracts or a maximum duration of two years, whichever is the shorter, except in limited circumstances;
— an express prohibition on sexual harassment in connection with work and a new dispute resolution framework that will in effect merge with the existing jurisdiction of the Fair Work Commission to make stop sexual harassment orders. The new framework will provide for disputes to be dealt with by conciliation or mediation by the Fair Work Commission, with the option to refer the matter for consent arbitration by the Fair Work Commission or apply to the court if the matter is not resolved. The civil penalty regime under the FW Act may apply to any contravention of the express prohibition and/or stop sexual harassment orders;
— the introduction of a new ‘workplace right’ prohibiting pay secrecy. Employees will be permitted to ask one another about and to disclose their remuneration and relevant conditions, and no adverse action may be taken against them because of them doing so. Employers will be prevented from enforcing pay secrecy clauses or including them in employment contracts;
— changes to the enterprise bargaining process, including how bargaining may be initiated, the approval process including how the Better Off Overall Test is to be applied, industrial action, and how the Fair Work Commission may deal with errors in enterprise agreements. The Bill also provides for the application of the BOOT to be reconsidered after an enterprise agreement has been approved due to changes in circumstances since approval;
— changes to existing bargaining streams under the FW Act, including to facilitate multi-employer bargaining. The multi-employer bargaining regime will have a range of safeguards and exclusions, including the commercial construction sector;
— further limitations on the termination of enterprise agreements. The Bill also includes sunsetting provisions for “zombie agreements” (being pre-FW Act instruments and instruments approved during the period) after a 12-month grace period. The grace period may only be extended in limited circumstances;
— raising the ceiling for the Small Claims jurisdiction of the courts from $20,000 to $100,000. The ceiling has remained unchanged since 2009; and
— the abolition of the Australian Building and Construction Commission and the Registered Organisations Commission.