MORE CHANGES TO THE INDUSTRIAL RELATIONS REGIME – FAIR WORK LEGISLATION AMENDMENT (SECURE JOB, BETTER PAY) ACT 2022

Kimberly Jones and Adam Hughes outline changes to the Fair Work system which came into effect on 6 June 2023.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act) was passed on 2 December 2022. The Act introduces significant changes to the federal industrial relations system, with some of the changes taking effect from 6 June 2023. In this article, we focus on the changes in these areas:

1. flexible work requests;
2. unpaid parental leave;
3. enterprise bargaining; and
4. multi-enterprise bargaining.

Flexible work

The eligibility criteria for flexible working requests have been expanded. Employees facing family and domestic violence, as well as pregnant employees, now have the right to make requests.

Employers also have new obligations when considering these requests. They are required to engage in discussions with the employee and make a genuine effort to find alternative arrangements that accommodate the employee’s circumstances. Employers must consider the consequences of refusing the request and provide a written response that includes an explanation of the reasonable business grounds for refusal. They must also offer information about referring a dispute to the Fair Work Commission.

If the employer and employee agree on changes different from the initial request, the employer must confirm these changes in writing within 21 days of the request.

The Fair Work Commission now has the authority to hear disputes related to flexible working arrangement requests.

These changes aim to promote work-life balance and support a more engaged and productive workforce.

Unpaid Parental Leave

Employees have the option to request an additional 12 months of unpaid parental leave after completing the initial 12 months of parental leave. An employer’s obligations to respond to these requests have expanded.

Employers must now agree or refuse the request within 21 days after discussing it with the employee and making genuine efforts to reach an agreement.

If an employer refuses the request, they must consider the consequences of the refusal and can only do so on reasonable business grounds. The employer must provide an explanation to the employee regarding the grounds for refusal and inform them of their right to dispute the decision in the Fair Work Commission.

These modifications aim to enhance the provisions for unpaid parental leave, ensuring employers respond appropriately to extension requests and providing a mechanism for dispute resolution through the Commission.

Multi-Enterprise Bargaining

The Act has introduced three distinct bargaining “streams” for different types of multi-enterprise agreements:

• Supported bargaining agreements: To replace the existing low-paid bargaining stream.
• Single interest employer agreements: For employers with clearly identifiable common interests and reasonably comparable business operations and activities.
• Cooperative workplaces agreements: Covering any multi-enterprise agreements that do not fall under the two streams above.

It is hoped that these streams will facilitate more effective collective bargaining and contribute to improved workplace conditions and pay for employees in different sectors.

Other Changes to Bargaining

Other bargaining amendments have been made to simplify the process for employees to negotiate single-enterprise bargains and streamline the process.

Bargaining representatives acting for employees can now directly write to the employer to commence bargaining for a proposed agreement that replaces an expired agreement within the last 5 years on substantially similar terms. This eliminates the need for a separate notice of employee representational rights before bargaining begins.

In cases where bargaining reaches an impasse, the Fair Work Commission can intervene, including by issuing an intractable bargaining declaration.

Employers with employees covered by a zombie agreement (a pre-2010 agreement that continues to operate) should have notified the relevant employees of various matters on or before 6 June 2023. Such matters include that they are covered by such an agreement and that it will terminate on 7 December 2023. Failure to provide appropriate notification could result in civil penalties.

The Better Off Overall Test (BOOT) remains in place, however, amendments have refined the application of the BOOT. The Fair Work Commission now undertakes a global assessment to determine if employees are better off overall, rather than conducting a complex line-by-line comparison with the award.

Key Takeaways: What the Act means for businesses.

The new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has led to a lot of changes with various commencement dates.

Employers should:

• Be aware of their new and expanded obligations, and when these commence;
• Understand the risks associated with the new enterprise bargaining system; and
• Seek advice if unsure of any change or its application to their business.

Contact us today by emailing Kimberly Jones at kimberly.jones@hhg.com.au or calling us on (08) 9322 1966.

*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.  

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