Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

The Secure Jobs, Better Pay amendments were enacted on 7 December 2022.

The legislation is aimed at:

  • encouraging wage increases
  • opening up the agreement-making process
  • improving job security
  • promoting gender equity
  • enhancing workplace conditions and protections

Some of the changes were implemented from 7 December 2022; other changes come into effect over the next 12 months.

Flexibility – From 6 June 2023, there will be increased obligations on the employer to consult, provide reasons for a refusal (which are restricted to reasonable business grounds listed in the legislation), and to discuss any flexible work arrangements the employer is willing to make. Further, if the employer refuses a request, or does not respond within 21 days, the FWC can step in and resolve the dispute. If the employer refuses unreasonably, the FWC can order that the employer grant the request or make other changes in response to the employee’s request for flexibility. The flexible work arrangements are part of the NES, contraventions of which can result in a civil penalty under the FWA.

Enterprise Agreements – From 7 December 2022:

  • FWC will have broader powers to intervene and make workplace determinations
  • Removal of limitations on protected industrial action (but must attend FWC conciliation before taking action)
  • Reduced scope for termination of nominally expired agreements (particularly during bargaining)
  • Sunsetting of ‘zombie’ agreements: collective and other agreements that pre-date FW Act automatically terminate on 6 December 2023 (unless employer/employees apply for an extension – can be up to 4 years)
  • Changes to Pre-Approval Process and Better Off Overall Test (BOOT)

 From 6 June 2023, the FWC will be able to make authorisations to force employers to bargain for agreements covering multiple employers where there is a “common interest” (Multi Enterprise Agreements or MEAs). A new safeguard has been added called the “reasonable comparability” test for inclusion with multiple employers. For businesses with less than 50 employees, the onus is on the union to argue “reasonable comparability” to make the case for inclusion in MEA bargaining. Small businesses with less than 20 employees cannot be compelled to bargain.

Fixed term contracts: New laws apply from 6 December 2023. Subject to some limited exceptions, fixed-term contracts will be capped at no more than 2 years, and cannot be extended more than once. If breached, the contract will be treated as a permanent employment contract.

Other Changes:

 From 7 December 2022:

  • Objectives of the Fair Work Act to include promoting job security and gender equality
  • Prohibition on Pay Secrecy
  • New protected attributes under FWA of breastfeeding, gender identity and intersex status

 From 7 January 2023:

  • Job ads cannot include pay rates below minimum applicable rates under FWA/award/EBA

 From 6 March 2023:

  • Positive duty to prevent sexual harassment in workplace
  • FWC Expert Panels (focus on pay equity and care/community sector)

 From 1 July 2023:

  • Small Claims Process increase in monetary cap for unpaid entitlements

Actions for Employers

  • Be aware of the required process for employee flexibility requests including requirement to consult with employee, timing of response and limited reasons if refusing a request.
  • Consider whether you need to negotiate or renew an enterprise agreement to avoid being forced to bargain as a result of union or employee action.
  • Plan for the expiry of old enterprise or collective agreements (dating from before 2010).
  • Review your fixed term contract arrangements and ensure they are compliant.
  • Update company policies and educate staff on their obligations and expectations in the workplace.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.

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