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Secure Jobs, Better Pay Bill introduced to Commonwealth Parliament

Stephen Schoninger, Avant Law - Partner, Head of Employment & Workplace

Monday, 7 November 2022

man with gavel

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (Bill) has been introduced to the Commonwealth Parliament, proposing some significant changes to Australian workplace laws.

Key takeaways

  • The Bill proposes wide-ranging workplace relations reforms that, if legislated, will affect Australian businesses of all sizes across all industries.
  • The Bill has a strong focus on the promotion of gender equity and job security, and contemplates sweeping reforms to enterprise bargaining, including a shift towards multi-employer bargaining.
  • The Government has signalled its intention to have the Bill made into law before the end of 2022. Given the likelihood that many aspects of the Bill will be passed and become law (whether in an amended form or otherwise), employers should be alive to the proposed reforms and be ready for some significant workplace relations changes.

The Bill was introduced to the Commonwealth Parliament on 27 October2022. It comprises the first tranche of the Albanese Labor Government’s legislative agenda in the area of workplace relations. The key aspects of the Bill include:  

Gender equity

  • amending the objects of the Fair Work Act2009 (Cth) (FW Act) to explicitly provide for the promotion of job security and gender equity, accompanied by corresponding changes to the modern awards objective and the minimum wages objective;
  • prohibiting ‘pay secrecy’ clauses commonly found in contracts of employment, and including in the FW Act an express work place right for employees to ask other employees what they are paid and to disclose their own pay to others;
  • creating two new Fair Work Commission (FWC) Expert Panels (a Pay Equity Expert Panel and a Care and Community Sector Expert Panel) with particular expertise to assess pay and conditions for people working in the care and community sector and other industry sectors generally dominated by female workers;
  • inserting further prohibitions on sexual harassment in connection with work into the FW Act and introducing a mechanism for the FWC to conciliate, mediate and arbitrate (by consent) disputes involving sexual harassment at work, with provision for matters that cannot be resolved by the FWC to proceed to the Federal Court;
  • providing that the FWC’s consideration of work value reasons in making an equal remuneration order must be free of assumptions based on gender and consider whether, historically, the relevant work has been undervalued because of such assumptions;
  • explicitly including breastfeeding, gender identity and intersex status as protected attributes in the provisions of the FW Act dealing with discrimination in employment;

Wages, job security and flexible work

  • prohibiting the advertisement of jobs at below minimum rates of pay (i.e. rates of pay below an applicable modern award or enterprise agreement rate of pay or, if no award applies, the national minimum wage);
  • prohibiting maximum and fixed term contracts for periods of over two years, subject to certain exceptions where a term contract has a 'legitimate use'. Those exceptions are proposed to include fixed term contracts for a specific task, as a part of a training arrangement, for essential work during peak periods, where an employer requires additional staff members for emergencies, or to replace a permanent employee who is absent for personal or other reasons;
  • amending the existing right for eligible employees to request flexible working arrangements, including by requiring employers to discuss the requested change with the employee and to genuinely attempt to reach agreement in relation to the request;

Enterprise bargaining and industrial relations

  • abolishing the Australian Building and Construction Commission and Registered Organisations Commission;
  • simplifying the enterprise bargaining process by removing the existing strict time limitations on the enterprise bargaining process (e.g. the seven-day access period and the 21-day period after the last notice of employee representational rights before voting on an agreement);
  • changing the 'better off overall test' (BOOT) to provide that the FWC will conduct a global assessment of the terms of conditions of a proposed enterprise agreement against the terms of the relevant underpinning modern award or awards, rather than the line-by-line comparison that the FWC currently undertakes;
  • providing that 'zombie' agreements (i.e.pre-2009 FW Act collective agreements) will automatically cease to have effect following a 12-month period after the Bill passes; and
  • introducing multi-employer bargaining through a 'cooperative bargaining stream' and 'supported bargaining stream' for lower paid and predominantly female sectors.

What’s next?

The Bill has been referred to the Senate Education and Employment Legislation Committee for review, with that review to be completed by 17 November 2022.

There is no guarantee that the Bill will pass the Parliament in its current form. Indeed, the business community, on the whole, has already pushed back on the multi-employer bargaining provisions of the Bill.

The Government has already indicated that it will amend the Bill to clarify the multi-employer bargaining provisions, further amend the BOOT, and provide for a 12-month period before the restrictions relating to fixed term contracts come into effect.

Whether the Bill passes in its current form or with amendments, employers should start to prepare themselves for significant changes to Australia’s workplace relations framework. Now is an opportune time for businesses to: 

  • review their employment contracts for pay secrecy clauses;
  • consider the types of flexible working requests they may receive from their workforce and whether those arrangements could be accommodated; and
  • anticipate whether their business is at risk of being swept up in multi-employer bargaining.

We will continue to monitor for developments in this space and provide a further update as the Bill progresses through Parliament.

We can help you

If you have any questions, or would like more information about how we can assist you or your practice, please call 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here 

About the author

Stephen Schoninger Image

Stephen Schoninger is a Partner and Head of the Employment & Workplace law practice at Avant Law, based in Sydney. Stephen has over 20 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.

Disclaimers

The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of its content. The information in this article is current to 8 November 2022.

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