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Major changes to workplace relations

After striking a deal with Senator Pocock, the Federal Government has passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, which received Royal Assent on 6 December 2022 and represents the most significant overhaul of the Fair Work Act 2009 (Cth) (FW Act) since its inception.

The key changes are summarised below. Some of the amendments apply immediately, while others commence at a specified later date.

Flexible Work Arrangement (FWA) Requests

‘Family and domestic violence’ and ‘pregnancy’ included as circumstances in which an employee will be eligible to request FWA
Changes to the procedures for dealing with requests for FWA for employers, including expanding an employer’s obligation to discuss and provide reasons for a response to a FWA request
Introduction of arbitration by the Fair Work Commission (FWC) to resolve disputes about a FWA request (following other dispute resolution processes, such as conciliation or mediation)

Fixed Term Contracts

Subject to specified exemptions, prohibition on the employer from engaging an employee on a fixed term contract:

o with a period of 2 or more years or in a contract which may be extended more than once; or

o that either could be extended or renewed for a period that totals more than 2 years across all contracts; or

o that can be extended or renewed more than once

Anti-avoidance provisions to deter employers from seeking to circumvent the prohibition

Overhaul of the Bargaining System

Initiation of bargaining upon written request by an employee bargaining representative
Changes to the BOOT, including confirmation that a “global assessment” is to be applied rather than a line-by-line comparison and the introduction of a reconsideration process which can occur during the life of an enterprise agreement
Removal of some pre-approval requirements
Multi-enterprise bargaining:

o low-paid bargaining to become supported bargaining stream

o expansion of single-interest employer authorisation – removal of the Ministerial declaration requirement and ability of employee bargaining representatives to make applications for an authorisation

o current multi-enterprise agreements to be cooperative workplace agreements

Sunsetting of ‘zombie agreements’, being instruments pre-FW Act and made during the bridging period
Additional criteria to be satisfied in order to terminate enterprise agreement which have nominally expired

Sexual Harassment and Discrimination

Prohibition on sexual harassment in connection with work in the FW Act, expanding the sexual harassment framework to include non-employees
‘Principals’ may be held vicariously liable for acts of their employees or agent
Introduction of a new dispute resolution framework, which is modelled on the framework in the FW Act that applies to general protections dismissal disputes – meaning sexual harassment claims can be litigated in courts with federal jurisdiction
The addition of 3 further protected attributes with respect to discrimination – breastfeeding, gender identity and intersex status

Equal Remuneration and the Prohibition of Pay Secrecy Clauses

FWC to be empowered to make Equal Remuneration Orders at its own initiative
Establishment of two expert equal remuneration panels within the FWC
Prohibition on “pay secrecy” clauses in employment agreements and fair work instruments
Positive right for employees to disclose and ask about remuneration and related information

Abolishing the ROC and the ABCC

Abolishment of both the Registered Organisations Commission (ROC) and the Australian Building and Construction Commission (ABCC)
Establishment of the National Construction Industry Forum

Small Claims