09/12/2022
As some of you might know, there are two big proposed IR changes next year! Here is a synopsis of what to potentially expect. It is really important that SMEs are across this.
1. SECURE JOBS, BETTER PAY BILL - 6 major changes
A. ENTERPRISE BARGAINING (INCLUDING MULTI-EMPLOYER)
The most contentious changes, especially for some small business, medium business is the proposed multi-employer enterprise bargaining. The changes include" Initiating bargaining: a majority support determination will no longer be required when negotiating a replacement agreement where no more than five years have elapsed and the proposed agreement covers the same group of employees.
Types of agreements: existing provisions are to be amended for greater access to multi-employer bargaining. Participation is voluntary and industrial action is not available.
Single interest bargaining authorisation: It is proposed to extend this stream to allow employee bargaining representatives to initiate the making of multi-employer agreements with groups of employers (such as franchisees in the same franchise) who share “clearly identifiable common interests”. Small businesses would be excluded from these provisions.
Supported bargaining authorisation: ‘supported bargaining’ will replace the low paid bargaining scheme which was introduced into the FW Act on inception to encourage bargaining in low paid sectors. This would permit greater FWC involvement in supervising bargaining, including access to arbitration where the FWC has made an intractable dispute declaration.
Industrial Action: The FWC must make an order directing the parties to attend a compulsory conference if it makes an order for a protected action ballot.
Intractable disputes arbitration: It is proposed that a bargaining representative can apply for an intractable dispute declaration for a proposed enterprise agreement, except a greenfield agreement.
Better Off Overall Test (BOOT): Clarification that the BOOT requires a global assessment that considers whether the terms of the agreement overall are more beneficial to employees when compared with the applicable modern award.
Termination of Enterprise Agreements: A change to the FWC’s powers to terminate expired enterprise agreements on the initiative of employers during industrial action. The Bill proposes the FWC to be required to consider whether termination of an expired agreement would be in the public interest, taking account of the following: continued operation of the agreement would be unfair for employees covered; or the agreement does not or will not cover employees; or the continued operation of the agreement will pose a significant threat to the viability of the business and that termination of the agreement would reduce redundancies. An employer will also be required to guarantee that any employees made redundant following the termination of the agreement (and for up to 5 years) would be guaranteed the redundancy entitlements in the terminated agreement. Employers will be required to notify employees of the termination of the agreement, and failure to do so would attract civil penalties. So called ‘zombie agreements’ will be subject to a sunset provision so they expire at the end of a grace period’ of 12 months after the commencement of the Act.
EMPLOYER ACTION: If you are in bargaining arrangements review once Act is enacted.
B. GENDER EQUITY
There are some significant changes here. Firstly, gender equity will be included as an object of the Fair Work Act and the modern award/ minimum wage instruments.
Most interesting for many employers will be the PAY secrecy ban.
The new provisions define employees’ entitlement to share pay information as a WORKPLACE RIGHT for the purpose of the general protections in the Fair Work Act.
The legislation will follow Queensland to include the removal of the need for a male comparator (a direct male counterpart performing the same role whose pay demonstrates discrimination). The work value provisions will be amended to include consideration of past gender-based assumptions.
To assist the Fair Work Commission (FWC), two expert panels will be created for Pay Equity and the Care and Community Sector.
EMPLOYER ACTION: If you do not have a solid remuneration strategy in place now, we strongly recommend you get one. Please consult a HR expert to assist you! Pay secrecy has a civil penalty contravention for an employer to include such a term in a contract or written agreement. Therefore, all confidentiality clauses need to be reviewed in policies and agreements. Specifically, if you know you have gender equity gaps, be prepared for some potential legal action.
C. More Flexible working arrangements
The right to request a flexible working arrangement is already in existence for some things, such as carer responsibilities. However, there is no guaranteed dispute resolution mechanism in cases where an employer has refused a request.
The Bill thus includes an amendment that would enable employees to access the FWC for arbitration, where disputes over requests for flexible working arrangements cannot be resolved in the workplace.
EMPLOYER ACTION: Ensure you have a robust policy and dispute resolution process to assess the decision to decline flexible working requests. Also, ensure managers know how to use the policy correctly.
D. Sexual Harassment (see respect at work bill below)
E. Job Security
Job security will now be included in the objects of the Fair Work Act. In addition, new restrictions limiting fixed-term contracts to no more than two years will be introduced. These provisions will allow several exceptions, including contracts for specialised tasks, government-funded positions or as permitted by a modern award.
There is likely to be a 12 months transition for employers to adjust to the changes to fixed-term contracts, and the anti-avoidance provisions will be strengthened by adding a prohibition on failing to re-engage an employee and instead engaging another person to do the same work.
The High Court confirmed that “…where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship".
EMPLOYER ACTION: Therefore, all businesses must ensure engagement of contractors are bona fide (i.e. not trying to avoid employing people), and all independent contractors should agree to proper and comprehensive written contract on the terms by which they are being engaged. This includes: the worker not being under the control of the principal, payment being based on outcome rather than hours worked (ideally a schedule of work); the worker invoicing for services performed; the worker provides their own tools and equipment for the performance and services, and a term stating that the relationship is one of independent contractor, not employment.
F. Construction Industry
The same Bill abolishes the Australian Building and Construction Commission and the Registered Organisations Commission, with their functions transferred to the Fair Work Ombudsman. The lower house made an amendment to the Bill stating that a National Construction Industry Forum will be established as a statutory advisory body.
The Government has indicated that there will be further legislative proposals in the new year!
EMPLOYER ACTION: Stay tuned!
2. RESPECT AT WORK ACT
Under the new legislation, responsibility will now be on employers to actively prevent s*xual harassment, s*xual discrimination, and victimisation in the workplace. It will also include a dispute resolution process modeled on the General Protections framework.
The Respect at Work Bill will:
• Place a POSITIVE duty on employers to take reasonable and proportionate measures to eliminate s*x discrimination, s*xual harassment and victimisation, as far as possible.
• Strengthen the Australian Human Rights Commission with new functions to assess and enforce compliance with this new requirement, including the capacity to give compliance notices to employers who are not meeting their obligations.
• Expressly prohibit conduct that results in a hostile workplace environment on the basis of s*x.
• Introduce ‘cost neutrality’ cost protection provisions for complainants
This Fair Work Act 2009, has been amended to include, amongst other changes, the prohibition on s*xual harassment of:
• A worker in a business or undertaking
• A person seeking to become a worker in a business or undertaking
• A person conducting a business or undertaking (PCBU).
The prohibition extends to s*xual harassment by third parties, such as customers or clients.
Employers may still be vicariously liable for any s*xual harassment perpetrated by their employees or agents, unless they have taken all reasonable steps to prevent the acts.
The provisions allowing the FWC to make “stop s*xual harassment orders” will be moved into this new division. The FWC will also be empowered to make other orders, including compensatory orders to deal with s*xual harassment complaints if parties agree to arbitration.
Complaints would need to be flagged within 24 months of the most recent incident. If the FWC is unable to resolve a matter, it will issue a certificate to that effect, and the matter can progress to court. New grounds of discrimination of breastfeeding, gender identity and inters*x status will be included for purposes of modern awards and general protections provisions.
EMPLOYER ACTION: For some employers lip service with regard to this is part of the culture. It will be no longer possible to not take appropriate action!
Update all relevant policies to the legislation when finalised. Make sure you have a solid procedure for preventing, investigating and managing s*xual harassment complaints. Implement (if you don't have one) a robust complaint resolution procedure.
Ensure your board and all leaders are trained in their obligations to proactively manage these issues in the workplace and appropriately respond to complaints. As always, ensure workers are trained on policies and procedures, what’s acceptance and unacceptable, how to make complaints, and be ethical bystanders (intervene as appropriate or tell a manager.
Promptly impartially and thoroughly investigate complaints and adopt a trauma informed approach in doing so. Reassure workers that their complaints will be believed and will be taken seriously and that they or the ethical bystanders will not suffer adverse consequences for making complaints
Offer EAP or other support services to complainants and other impacted workers and time off to access these services and supports if required.
BE PROACTIVE: Ensure you do proper risk assessments bases on WHS, consultation with workers, workplace surveys, exit-interviews, absenteeism patterns, workers' compensation claims and complaints to identify and proactively address “hot spots” in their organisations.
HAVE COURAGE: Sometimes, the perpetrator gets away with behaviour due to their being of "higher value to the organisation". I have seen this countless times in my 30 years of HR work. "The cost to an organisation of inappropriate, unhealthy and disrespectful behaviours will always outweigh any top-line benefit a perpetrator is perceived as bringing in". Acceptance of this behaviour by leadership (i.e. not taking appropriate actions) creates a toxic culture, where people would rather leave than complain. However, this may well change now.
By Vanessa Giannos, CEO of The HR Experts International
The HR Experts International has operated since 2008. With clients all over the world, we are Australia’s leading HR and Strategic business consultancy offering consulting, coaching & training services for small to medium businesses, start-ups and enterprises.
Disclaimer: This Article provides a summary only of the subject matter covered without the assumption of a duty of care and is for informational purposes only. No person should rely on the contents as a substitute for legal or other professional advice.
Atrtibuttion: Adapted from Harmers Workplace Lawyers and HRM online.