The bill passed the Senate on that day. The bill received assent on 7 December 2022 so parts of it are already law. Others will commence at a later date.
The bill makes wide-spread and significant changes to the Fair Work Act; possibly the most widespread changes in a decade. It’s not possible to cover them all in one article, but the ones likely to affect most employers include:
Pay Secrecy
Employees now have a workplace right to disclose remuneration and “terms of employment that are reasonably necessary to determine remuneration outcomes” (eg. hours of work). Employees are also free to ask other employees about that information. Any terms of employment contracts that are inconsistent with the new workplace rights will have no effect, and an employer who enters a contract that breaches the new workplace rights after the provisions come into effect will contravene the Act.
This provision is now law.
Sexual Harassment
The new provisions will:
- allow the Fair Work Commission (FWC) to order compensation to remedy past harm (the current provisions only allow for orders to stop sexual harassment, with penalties for failure to comply);
- allow applications to be made jointly by multiple aggrieved applicants or by their union (e.g. where there is a common perpetrator); and
- allow the Fair Work Ombudsman to investigate and bring civil penalty proceedings against employers or individuals for contravention of the sexual harassment prohibitions.
This provision will become law on 6 March 2023.
Bargaining for Enterprise agreements
The new provisions amend the parts of the Fair Work Act relating to multi-enterprise agreements. The changes allow employers with clearly identifiable common interests to more easily bargain together. The operations and business activities of common interest employers must be reasonably comparable. For employers with 50 or more employees, the onus is on the employer to establish it is not a common interest employer or its operations and business activities are not reasonably comparable with the other employers
Under the new arrangements it will be easier for the FWC to add employers to an existing enterprise agreement or an existing common interest employer authorisation, including without the employer’s consent (provided a majority of employees approve), with the following caveats:
- Employers who employ fewer than 20 employees may not be added to a single interest employer agreement or authorisation without their agreement; and
- The FWC will have the discretion to refuse an application to add a new employer if the FWC is satisfied that, on the day it will approve the relevant application, less than 9 months have passed since the most recent nominal expiry date of an agreement
Multi-enterprise agreements will have some key differences, including the ability for employers and employees to become covered by an existing multi-enterprise agreement.
An employer negotiating as part of a multi-enterprise agreement must obtain written consent from each union acting as a bargaining representative prior to putting the agreement to a vote. This effectively gives unions an extraordinary veto power over multi-enterprise agreement voting.
The changes also remove the need for a ‘notice of employee representational rights’ to be issued before commencing bargaining within 5 years after the nominal expiry date of an enterprise agreement. Bargaining will commence on written request from an employee bargaining representative.
The majority of this change will commence on 6 June 2023, or on an earlier date fixed by government proclamation.
Termination of enterprise agreements
The new arrangements make it more difficult to terminate enterprise agreements that have passed their nominal expiry date;
This change is now law.
Fixed-terms and maximum-term contracts
Fixed-term and maximum-term contracts will be limited to two consecutive contracts and/or a maximum duration of 2 years. Employees on fixed-term contracts will have the right to convert to permanent employment contracts in certain circumstances. A new information sheet (the “fixed-term contract information statement”) will also be published and must be provided to the employee before or as soon as practicable after the contract is entered into.
This change will commence on 6 December 2023 or on an earlier date fixed by government proclamation.
Flexible work
The amendments strengthen the portions of the Act dealing with flexible work arrangements, including imposing an obligation on employers to meet with employees and giving the FWC the power to conciliate and arbitrate disputes about flexible work requests.
This change will commence on 6 June 2023.
The changes to the bargaining portions of the Fair Work Act make it highly likely that employers can expect more pressure to bargain. If you have an enterprise agreement that has passed its nominal expiry date then it is almost certain you will be required to bargain.
There is some relief for small business owners (20 employees or less, including casuals), who are exempt from being added into a common interest employer authorisation without their consent.
