Australia’s new Federal Government has introduced a new industrial relations bill that seeks to remake bargaining with a new multi-employer bargaining regime. But includes safeguards to bar unions with a record of flouting workplace laws from participating, limit industrial action to those in a ‘supported bargaining stream’ and exclude the commercial construction sector.

Right to Request Flexible Work Arrangement provisions have been strengthened in the employee’s favour requiring the employer to make greater transparent effort in coming to an agreement about requests.

If the parties cannot agree, the worker will be able to take the refusal to the Fair Work Commission, which will help parties reach an agreement through conciliation. But if conciliation fails, FWC will be able to make a binding decision. Further incentivising the employer to reach agreement where it previously hadn’t been compelled to do so.

Small claims limit rises from $20,000 to $100,000

In an unheralded development, the legislation will raise the ceilings for small claims in the Federal Circuit and Family Court (Division 2) and state and territory magistrates’ courts from $20,000 to $100,000.

The explanatory memorandum says current threshold hasn’t been changed since 2009 and could require prospective claimants with modest claims that exceed $20,000 to abandon part of their claim to bring it within the monetary cap or not use the small claims procedure at all.

The Bill implements the government’s promises to abolish the ABCC and ROC, while giving the FWC new enforcement powers for the regulation of registered.

Bargaining shake up

Among the new measures, the FWC will be able to issue an exclusion order to unions held to have breached the Fair Work Act in the preceding 18 months (targeting the CFMMEU), stopping them from bargaining for a specific single-interest employer agreement or multi-enterprise agreement.

There has been much commentary already about the changes to multi-enterprise agreement making. There are issues about the practicalities of the process, the drafting of the legislation being clear and the risk of industry-wide strikes.

The Bill seeks to reform existing bargaining streams to provide flexible options for reaching agreements at the multi-employer level, rather than creating new streams. Albeit multi-employer agreements have already been a feature of the Fair Work Act with the condition of no-strike action. Access to industrial action in multi-employer bargaining under the Bill will be limited

Among the overhaul of the bargaining is a renamed cooperative bargaining stream which reframes and retains the existing multi-employer stream in the Fair Work Act. This stream is entirely voluntary, and keeps the parameters of no industrial action, while conciliation and arbitration are by consent and FWC assistance will be available if the parties request it.

The ‘supported bargaining stream’ is designed to provide greater access to bargaining for lower paid and feminised sectors and does allow access to protected industrial action, but only after participating in a compulsory conference period.

According to the explanatory memorandum, those bargaining in this stream “might include those in low-paid occupations, government-funded industries, and female-dominated sectors, as well as employees with a disability, employees who are culturally and linguistically diverse and First Nations employees who may be employed in such sectors and face additional hurdles”.

The FWC will consider whether it is appropriate for the parties to bargain together, looking at the prevailing pay and conditions in the relevant industry, whether employers have clearly identifiable common interests, and whether the number of bargaining representatives would be consistent with a manageable collective bargaining process.

The tribunal must also be satisfied that at least some employees are represented by a registered organisation when making a supported bargaining authorisation.

Employers bargaining in the single interest stream must also have a clearly identifiable common interest and the FWC must be satisfied it is in the public interest.

As expected, the legislation aims to stop employers applying unilaterally to terminate agreements nominally expired agreements if it would result in reducing employees’ entitlements (other than in prescribed circumstances), such as “where the threat of termination may disrupt bargaining for a new enterprise agreement”.

Furthermore, the Bill amends the Fair Work Transitional Act to sunset all remaining transitional ‘zombie’ instruments currently preserved by that Act.

The government is consulting on other key legislative pledges, including “same job, same pay” and empowering the FWC to deal with gig workers engaged under “employee-like” employment arrangements.

BOOT shifts to global assessment

The BOOT has long been considered a problematic area of the Fair Work Act. The Bill’s measures to overhaul the Better Off Overall Test apply it as a “global assessment”, rather than a line-by-line comparison between the proposed agreement and relevant modern award.

The FWC will be required to only consider patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time, while it will be permitted to directly amend or excise an agreement term that does not otherwise meet the BOOT. Whereas they previously looked at all possible scenarios of work. Where there has been a material change in working arrangements, or where the relevant circumstances had not been properly considered during the approval process a ‘reconsideration can be sought.’

New object and axing of comparator to advance pay equity the Government will reform the Fair Work Act’s equal pay case provisions. It will no longer be necessary for sex discrimination to seek an equal pay case. The changes would be supported by establishing a pay equity expert panel and a caring community sector expert panel within the FWC, along with a dedicated research unit.

The government will also prohibit pay secrecy clauses as part of its pay equity agenda.

The Bill further specifically prohibits workplace sexual harassment, implementing recommendation 28 of Sex Discrimination Commissioner Kate Jenkins Respect@Work.

While the Government has indicated it is eager to get the Bill through parliament in full drafting issues and crossbench concerns will make fast passage a challenge with the last sitting day being on 1 December.

Expect IR changes to be a big feature of news for early 2023.

If you have questions about employment law in your workplace, Master Electricians have unlimited access to the MEA Employer Advice Hotline. Phone 1300 889 198 to speak direct to the experts. 

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