ALERT: What the Federal Government’s IR reforms mean for employers
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, which contains the first tranche of the Albanese Labor Government’s proposed IR reforms, was introduced to Parliament on 27 October 2022.
As expected, the areas identified as priorities by the Government are gender equity and enterprise bargaining.
The Bill expands the current anti-sexual harassment provisions of the Fair Work Act 2009 (‘the Act’) to provide a prohibition that a person must not sexually harass another person who is working in a business or seeking employment in the business. The Bill provides that an employer will be vicariously liable for the conduct of its employees or agents “… if the (employer) has also done the act”. This liability can be removed if the employer proves that it “… took all reasonable steps to prevent the employee or agent” from committing sexual harassment. The Bill also introduces a sexual harassment disputes mechanism through the Fair Work Commission and empowers the Commission to make orders to stop sexual harassment. Complainants can make a complaint for up to 24 months after the alleged conduct, and the Commission may allow complaints outside of that period at their discretion.
The Bill expands the Act’s General Protections anti-discrimination provisions to include breastfeeding, gender identity and intersex status, and its Enterprise Agreement provisions to allow enterprise agreements to contain special measures to achieve equity.
Other equity measures within the Bill include:
- limits the use of fixed term contracts to two years subject to certain exemptions. A Fixed Term Contract Information Statement will also need to be provided to employees engaged on such contracts to inform them of their industrial rights;
- amendments to the family and domestic violence leave provisions of the National Employment Standards (‘NES’); and
- expanded obligations upon employers to discuss flexible working requests with the employee concerned and genuinely try and reach agreement, with the Commission empowered to arbitrate flexibility request disputes.
The Labor Government has foreshadowed that reforms to enterprise bargaining are intended to maximise access to bargaining, enhance employee representation and promote wages growth.
The Bill provides for the automatic termination of “zombie” agreements 12 months after the enactment of the reforms, and it further restricts employers from applying to terminate current agreements.
Current multi-employer bargaining arrangements will be recast as the “Cooperative Workplace Bargaining Stream” which will expand access to female dominated industries with low union representation, such as childcare and aged care.
The Bill contains multiple changes to the process regarding the commencement of bargaining, seeking approval of a proposed agreement by employees and the Commission’s approval of agreements. These topics will be discussed further in a future article.
The Bill has been sent to a Parliament committee for consideration with three weeks scheduled for its review. This timeframe indicates that Labor intends to push through the Bill at its earliest opportunity.