ALERT – Secure Jobs, Better Pay Legislation Passed

ALERT – Secure Jobs, Better Pay Legislation Passed

ALERT – Secure Jobs, Better Pay Legislation Passed

On 6 December 2022 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 received royal assent.

The Secure Jobs Better Pay Act amends the following Acts which are relevant to the Commission’s work:

  • Fair Work Act 2009
  • Fair Work (Registered Organisations) Act 2009
  • Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

The amendments will commence in stages over a 12-month period.

A summary of the most significant reforms for employers are provided below in effective date order.

Effective immediately – Initiating bargaining for single interest agreements

 

Effective immediately the Act has removed the requirement for employee bargaining representatives/unions to obtain a majority support determination from the Fair Work Commission to initiate bargaining in certain circumstances.

A written request to bargain can be provided from a bargaining representative to an employer for a single interest agreement if:

  • The proposed agreement will replace a single-enterprise agreement that has passed its nominal expiry date
  • A previous single interest employer authorisation remains operational, along with an earlier agreement 
  • No more than 5 years have passed since the nominal expiry date
  • The proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.

Effective now – Changes to equal pay (Pay Secrecy and Gender Pay Gap)

 

Pay Secrecy
Effective from 7 December 2022, pay secrecy clauses in employment contracts have been banned. The amendments immediately apply to all new employment contracts and contracts that are revised or amended.

This change provides employees a workplace right to disclose their remuneration, including any terms and conditions of their employment necessary to determine remuneration.

Pay secrecy terms in current employment contracts will continue to operate, until they are varied, or a new contract is entered into.

Gender Pay Gap

 

Effective from 7 December 2022, the Act introduces measures to address the gender pay gap, including by prohibiting pay secrecy and establishing new Fair Work Commission Expert Panels.
The expert Panels of the Fair Work Commission will be established for pay equity and pay equity in the Care and Community Sector. 

Effective from 6 March 2023 – Sexual harassment and discrimination 

 

Effective from 6 March 2023, the Fair Work Commission will have the power to deal with sexual harassment by:

  • Making “stop sexual harassment orders” to prevent future unlawful conduct
  • Dealing with a dispute and ordering compensation for sexual harassment through mediation and conciliation.

The Act expressly prohibits sexual harassment in the workplace, and breaches may result in civil penalties as the Fair Work Ombudsman will have power to investigate and bring proceedings.
The anti-discrimination provisions of the Fair Work Act have been extended to include ‘breastfeeding’, ‘gender identity’ and ‘intersex status’ as protected attributes.

Effective from 6 June 2023 – Multi enterprise bargaining

 

Effective from 6 June 2023 a new bargaining framework will commence which will include two (2) streams, ‘supported bargaining’ and ‘cooperative workplace agreements’.

Supported bargaining covers employees and employers who may have difficulty bargaining at the single-enterprise level. This could include lower-paid industries as they lack the necessary skills, resources and power to bargain effectively.

For cooperative workplace agreements stream, the Act introduces a broader basis for multi-employer bargaining in any sector under amended “single-interest” employer authorisations.
Employers with clearly identifiable common interests may need to bargain together and the test will include whether the operations and business activities of the employers are ‘reasonably comparable’.

Small businesses with under 20 employees will be exempt from this bargaining stream, however employers with over 50 employees will face a reverse onus, in that they will be required to prove that they are not a common interest employer if they are to avoid being included in a single interest employer authorisation. 

One of the amendments made by the Senate was to allow the Fair Work Commission to exclude employers from multi-employer bargaining in this stream if they are already:

  • Bargaining in good faith
  • Have a history of effectively bargaining
  • Less than nine months have passed since the nominal expiry date of their current enterprise agreement. 

Effective from 6 June 2023 – Intractable bargaining determinations

 

Effective from 6 June 2023 the Fair Work Commision will have the power to bring bargaining to an end in the ‘intractable bargaining’ jurisdiction.

The Fair Work Commission will have the ability to determine any outstanding matters by arbitration where there is otherwise no reasonable prospect of the parties reaching agreement. In arbitrating a workplace determination, The Fair Work Commission would be required to:

  • Take into account the interests of the employers and employees who will be covered by the workplace determination
  • Exercise its powers in a manner that is fair and just

Ensure that the workplace determination would, if it was an enterprise agreement, meet the Better Off Overall Test (BOOT) against the relevant modern award.

Effective from 6 June 2023 – Flexible work 

 

The flexible work provisions will be changed, and the Fair Work Commission will now have the power to deal with disputes. The provision changes are:

  • Eligible employees have been expanded to include employees who are pregnant as well as situations where an employee, or a member of their immediate family or household, experiences family and domestic violence. Employers will be required to discuss a request with an employee and provide reasons in writing if they refuse a request

Where a solution cannot be agreed within the workplace, The Fair Work Commission will have the power to deal with any disputes which could include conciliation, mediation or if necessary mandatory arbitration.

Effective from 6 June 2023 – Parental leave extension requests

 

When an employee has taken 12 months unpaid parental leave and requests an extension for a further 12 months, the employer must discuss the request with them and provide reasons in writing if they refuse the request.

The Fair Work Commission will again have the power to deal with any disputes.

Effective from 6 December 2023 – Zombie agreements

 

Employers with Zombie Agreements will have until 6 June 2023 to notify employees that the arrangements will sunset automatically on 6 December 2023, unless they apply to The Fair Work Comision and are granted an extension.

Effective from 6 December 2023 – Prohibition on fixed term contracts 

 

Effective from 6 December 2023 employers will be limited in their use of fixed term contracts. These limitations include a fixed term contract for the same role beyond two years (including renewals) or two consecutive contracts (whichever is shorter).

There are some exceptions to the new rules including:

  • Performing a discrete task for a fixed period
  • Apprentices and trainees
  • Undertaking essential work during a peak demand period
  • Temporarily replacing another employee on extended leave (such as workers compensation)
  • Earning above the high-income threshold.

If a modern award permits the use of fixed term contracts that will also be a valid exemption.

We anticipate more detailed communication will be circulated as we move closer to the effective date for each amendment.

For assistance with understanding the Secure Jobs, Better Pay Legislation that has been passed or any other HR matter, please contact us at advice@hradviceonline.com.au or 1300 720 004.

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