The Secure Jobs, Better Pay legislation has built on the previous government’s initial steps around sexual harassment and discrimination and implemented the remainder of the recommendations in the Respect@Work report.

The amendments expand the way in which sexual harassment matters can be handled by the Fair Work Commission (FWC) and the Federal Courts. Under the Act, sexual harassment in the workplace is expressly prohibited and a breach of this prohibition can result in claims and civil penalties.

What will become most relevant for all employers is the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 introduced a positive duty for employers to take reasonable and proportionate measures to eliminate unlawful sexual harassment, which requires employers to significantly step up their current sexual harassment risk management practices. Meaning that employers will need to actively takes steps, like training and policy implementation, having staff with duties that include these activities and providing support within the business.

Anti-discrimination and special measures

“Breastfeeding”, “gender identity” and “intersex status” definitions will be included into the anti-discrimination provisions of the Fair Work Act.

Prohibiting sexual harassment in the workplace

The prohibition of sexual harassment in the workplace extends to all “workers”. The term worker has a broader definition than just employees and includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students and/or volunteers, as well as prospective workers and third parties such as clients and customers.

Workers, prospective workers, and persons conducting a business or undertaking will each be able to seek remedies under the Fair Work Act.

The FWC to deal with sexual harassment by:

1. continuing to provide for mechanisms for workers to seek a “stop sexual harassment order” to prevent future harassment. This is in the form of the already establish Sexual Harassment jurisdiction of the FWC; and
2. dealing with a dispute and ordering compensation to remedy past harm caused by sexual harassment through mediation and conciliation. If the matter remains unresolved, the parties can consent to arbitration in the FWC, or the worker(s) or their union can proceed to the Federal Court or the Federal Circuit and Family Court of Australia within 60 days of the FWC issuing a certificate confirming that the matter remains unresolved.

The FWC will have discretion to dismiss an application greater than 24 months after the last of the contraventions is alleged to have occurred.

Applications can be made jointly by multiple aggrieved persons, as well as by a union, as opposed to a single individual. This will enable the FWC to deal with multiple parties together if it is appropriate to do so – for example, where there is a common perpetrator or principal or work location of where the sexual harassment has occurred, from a practical perspective.

Additionally, the FWC must conduct any conferences in private, as a protection for victim survivors and witnesses.

A person can make a single application seeking to stop sexual harassment and later seek remedy for past harm caused by sexual harassment but is not otherwise able to “double-dip” by obtaining multiple remedies for the same conduct under the Fair Work Act, as well as an anti-discrimination law or the Australian Human Rights Commission.

In addition to this new avenue for workers to seek compensation, the regulator, the Fair Work Ombudsman (FWO) will have powers to investigate and bring civil penalty proceedings against employers or individuals for sexual harassment in the workplace.

What is expected?

It is anticipated that there will be an increase in claims around sexual harassment, noting that:

• unions are able to bring matters relating to sexual harassment in the workplace on behalf of workers;
• the FWO has additional powers to investigate and bring civil penalty proceedings for contraventions of the prohibition on sexual harassment; and
• workers can bring joint applications.

Similar to the experience of the stop-bullying jurisdiction of the FWC, we envisage that the stop sexual harassment jurisdiction will be less utilised in the absence of compensation orders being available than the remedial jurisdiction.

What do I need to do as an employer?

The amendments are also accompanied by a vicarious liability provision which means that an aggrieved person can seek remedy from their employer in addition to the individual perpetrator.

Employer’s will need to demonstrate that they have taken all reasonable steps to prevent the relevant sexual harassment. Those who fail to take reasonable steps to prevent workplace sexual harassment more broadly in the workplace may also be subject to enforcement action.

The FWO will now be able to issue statutory notices compelling the production of documents and records or the examination of individuals. If the complaint is sustained, the FWO can take a number of enforcement outcomes such as compliance notices, enforceable undertakings or litigation seeking civil penalties and/or compensation. Employers should be able to readily produce records around sexual harassment training, policies and other relevant documents relating to workers much like they do in safety investigations.

Examples of actions

Employers should at their organisation and how it seeks to prevent and prohibit sexual harassment – which as a starting point may include:

• developing a “safe to speak up” culture,
• creating “speak up” channels, to encourage complainants of sexual harassment;
• reviewing and updating policies particularly the broad spectrum of “workers”,
• reviewing and updating procedures available to resolve grievances or disputes, including investigation processes;
• undertaking discrimination and harassment training that is rolled out periodically to staff (including bystander training) and keeping clear records of staff attendance;
• continuous monitoring of the workplace environment and culture and responding to any risks or incidents; and
• consider a sexual harassment-specific risk assessment and implementing appropriate controls.

When do I need to take action?

The changes relating to sexual harassment commence 3 months after the day after the Act receives Royal Assent (on 6 March 2023).

What about penalties?

The maximum civil penalty is 60 penalty units (currently $13,320 for an individual and $66,600 for a body corporate) and there is no cap on compensation orders in the federal jurisdiction.

Enterprise agreements

There are changes to enterprise agreements which may have major impacts. These can affect current agreements and future bargaining.

What’s changed?

Procedural requirements for approval of an agreement – where staff vote on the deal, rules around unilateral terminations and the Better Off Overall Test (BOOT).

EBA Procedural requirements

The Fair Work Act has been criticised for its overly prescriptive pre-approval process for most of its enactment. These changes will replace requirements such as issuing a notice of employee representational rights and strict timeframes for the voting process. There will be broader requirement for the FWC to be satisfied the employees “genuinely agreed”.

Termination of EBA

Unilaterally terminating an enterprise agreement which has passed its nominal expiry date will require additional steps. The FWC will need to be satisfied of one of the following before terminating an existing agreement:

• the continued operation of the agreement would be unfair to the employees;
• the agreement does not and is not likely to cover any employees; or
• the continued operation of the agreement would pose a significant threat to the viability of the business, terminating the agreement would reduce the risk of terminations, and the employer gives a guarantee that it will preserve termination entitlements under the agreement.

The changes relating to terminating EBAs commence on 7 December 2022.

BOOT

There are changes to the BOOT which require the FWC to undertake the BOOT as a global assessment, instead of a line-by-line comparison. The FWC also only needs to apply the BOOT to reasonably foreseeable patterns or types of work under the agreement, reducing the risk of a hypothetical scenario bringing down the entire agreement.

The FWC is now able to amend proposed agreements itself, to amend or remove terms which don’t meet the BOOT. This means the proposed agreement won’t need to be voted on again by employees.

A new pathway for reconsideration of the application of the BOOT has also been added. This is to ensure that new employees who are engaged after an agreement has already been assessed for BOOT compliance can apply for reconsideration. If they do so, the BOOT will be applied as at the time the original application for the agreement to be approved or varied was made. This is most likely in situations where the pattern of work for these new workers is different.

The changes in respect of the BOOT commence on 6 June 2023.

Flexible work

Rights around ‘flexible work arrangements’ have been part of the Act since 2009. There will be new provisions empowering the Fair Work Commission to resolve disputes regarding those requests which have been out of their reach.

Employers will now be required to meet with employees to discuss requests for flexible work arrangements and cannot refuse a request before discussing alternative working arrangements with employees.

What’s changed

There are expanded the circumstances to request flexible work arrangements to include situations where an employee, or a member of their immediate family or household experiences “family and domestic violence”.

An employer who receives a request MUST:

• meet with an employee to discuss their request; and
• if refusing the request, agree upon alternative changes to working arrangements and note the agreed changes in the employer’s written response; or
• if the employer still intends to refuse the request, outline the employer’s reasonable business grounds for refusal and address the following:

• 1. changes to the employee’s working arrangement that would accommodate (to any extent) the employee’s circumstances and that the employer would be willing to make; or
  2. that there are no such changes the employer could make to accommodate the employee’s circumstances.

For the first time the Act introduces a dispute resolution mechanism for circumstances where an employer has:

• refused a flexible work request; or
• not provided a written response to a flexible request within 21 days; and
• the parties are unable to resolve the dispute through discussion at the workplace level.

Where conciliation is unsuccessful, or “if urgency is required”, the Fair Work Commission will have the power to “deal with a dispute as it considers appropriate” or through mandatory arbitration.

The Fair Work Commission can make binding decisions, including:

• an order that an employer be taken to have refused a flexible work request, where the employer has not responded within the prescribed 21 days; or
• where the employer has refused the request, an order that it would be appropriate for the grounds on which the employer refused the request to be taken, or not to be taken, as reasonable business grounds; or
• an order that the employer provide the employee with a written response to their flexible work request under s 65A of the Act.

Orders under the new section 65C cannot be inconsistent with the Fair Work Act, or a term of a fair work instrument (other than another Fair Work Commission order of the same kind).

When do I need to take action?

The flexible work amendments in the Act commence on 6 June 2023.

Employers should consider:

• how they will approach any future discussions with employees regarding flexible work requests; and
• what limitations exist in relation to their ability to offer flexible working arrangements (taking into account the nature of the business) and how these limitations might be evidenced.

Seek updated advice and assistance when they get these flexible work requests after the commencement date.

Bargaining

Significant changes have been made to the enterprise bargaining framework with the goal of encourage bargaining. The Act reduces barriers to multi-enterprise bargaining and expands the FWC’s powers to resolve bargaining disputes, up to and including by arbitration.

What’s changed

The big change everyone is focused on are the changes to multi-employer bargaining. However, the changes go beyond this and include reduced barriers to FWC arbitration.

Multi-employer bargaining

The Act does not introduce new streams of multi-employer bargaining, but reduces barriers to access the existing multi-employer bargaining streams:

• Supported bargaining – this is a stream of multi-enterprise bargaining designed to assist industries with low agreement coverage. The FWC to consider matters such as the prevailing pay and conditions in the industry and whether the employers have common interests. The intention is to make it easier for employees to access this stream than the old low paid bargaining stream.
• Single interest employer authorisations – the Act makes significant changes to the single interest employer authorisation which is the most commonly used agreement stream. “Single interest employers”, will be called “common interest employers” who can bargain together for a multi-enterprise agreement.

Despite removing this term, the FWC may still issue a single-interest employer authorisation using updated criteria for assessing whether employers are common interest employers.

The Act clarifies that single interest employer agreements will now be a form of multi-enterprise agreement. Employers with clearly identifiable common interests can more easily bargain together. It provides that the operations and business activities of common interest employers must be reasonably comparable for the purposes of making or varying a single interest authorisation or agreement.

For employers with 50 or more employees, the onus is on the employer to establish it is not a common interest employer or its operations and business activities are not reasonably comparable with the other employers. The changes also make it easier for employers to be added to an existing single enterprise agreement, or an existing single-interest employer authorisation, including without the employer’s consent (provided a majority of employees approve), with the following caveats:

• • Employers who employ fewer than 20 employees may not be added to a single interest employer agreement or authorisation without their agreement; and
  • The FWC will have the discretion to refuse an application to add a new employer to a single interest employer agreement or authorisation if the FWC is satisfied that, on the day it will approve the relevant application, less than 9 months have passed since the most recent nominal expiry date of an agreement.
• Co-operative workplaces – the new term for multi-enterprise agreements, the co-operative workplaces stream will have some key differences, including the ability for employer and employees to become covered by an existing multi-enterprise agreement and to be added to a multi-enterprise agreement.

Other key changes also include:

• A new requirement that an employer negotiating as part of a multi-enterprise agreement must obtain written consent from each union acting as a bargaining representative for the agreement prior to putting the agreement to an employee vote to either approve or vary the agreement. This effectively gives the unions an extraordinary veto power over multi-enterprise agreement voting.
• A carve-out for the construction industry. Under the changes, employees who perform excluded work, defined as “general building and construction work”, cannot be covered by a multi-enterprise agreement (including work in the “civil construction” sector, and not including work in the asphalt industry). This is a significant change and marks a significant victory for the construction industry.

Fewer barriers to commencing bargaining

The Act reduces barriers to commence bargaining for replacement agreements, meaning that employers who have previously bargained with employees have fewer options to resist bargaining for new agreements.

Replacement agreements

The Act removes the need for a notice of employee representational rights to be issued to commence bargaining for a replacement enterprise agreement. A replacement agreement is defined as one which will replace an existing agreement which had a nominal expiry date within the last 5 years and which covers a substantially similar scope of employees. In that case, bargaining will commence on written request from an employee bargaining representative. In the case of an existing expired Agreement, a majority support determination will no longer be required to force an employer to commence bargaining.

Enhanced bargaining dispute powers

Complementing the reduced barriers to bargaining and enhanced access to multi-employer bargaining are stronger powers for the FWC to assist in resolving bargaining disputes, including a simpler and faster pathway to arbitration.

• Intractable bargaining declarations – These new declarations are an alternative to the serious breach declaration scheme, which sanctioned bargaining representatives who breached a bargaining order requiring them to comply with the good faith bargaining requirements.The new intractable bargaining scheme shifts the focus from individual bargaining representatives’ compliance to the overall progress of the dispute. Where negotiations have become “intractable”, the FWC will now have the power to proceed to issue a workplace determination. The Act provides for a minimum bargaining period which is the later of 9 months after the nominal expiry date of any existing agreement, or the day that is 9 months after the day bargaining starts. This minimum period must have passed before the parties can be issued an intractable bargaining declaration.
• Fewer barriers to arbitration – reduces the requirements for all parties to consent to FWC assistance with a bargaining dispute, making access to FWC intervention easier than before.
• The Act also provides that no party can unreasonably withhold agreement for a proposed enterprise agreement being put to a vote, and the FWC is able to resolve any associated disputes. This amendment may reduce the number of disputes which make it to the “intractable disputes” process as an alternative strategy may be to put the proposed Agreement to a vote.

What does this mean for employers?

Expect more pressure to bargain and if you have an expired Agreement to be required to bargain.

Employers in certain industries targeted by the supported bargaining (not likely for the electrical contracting industry). Single interest employer streams face an increased risk of being included in multi-enterprise bargaining. Target industries include those with high proportions of First Nations employees or employees with disabilities, and those which traditionally pay at or close to Award wages, including:

• aged care;
• disability care; and
• early childhood education.

There is some relief for small business owners, who are exempt from being added into a single interest employer authorisation without consent. The Act amends the definition of small business in these circumstances to be increased to 20 employees (including casual).

For employers who are at less risk of being co-opted into multi-employer bargaining, the renewed focus on collective bargaining makes it more likely that your employees will seek to bargain.

When do I need to take action?

These provisions commence on 6 June 2023.

Abolition of the ABCC

The ABCC dealt with workplace relations matters in the building and construction industry, including investigating and taking legal action for breaches of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) and the Fair Work Act 2009 (Cth). This was most commonly applicable on Federally funded construction work.

From 10 November 2022, the Fair Work Ombudsman (FWO) will become the workplace relations regulator responsible for enforcing the Fair Work Act for the construction industry.

The Code for the Tendering and Performance of Building Work 2016 (Building Code) has also been repealed. The Code governed the standards of conduct for building industry participants involved in Commonwealth funded building work.

The Act will repeal provisions in the BCIIP Act relating to higher penalties for building industry participants. Matters such as unlawful industrial action, coercion, adverse action, freedom of association and discrimination will now be dealt with under provisions of the Fair Work Act and will continue to apply to building industry participants, as will provisions relating to right of entry, and prohibiting pattern bargaining in industrial action.

The National Construction Industry Forum will be established from 1 July 2023. The Forum will be a statutory advisory body for the building and construction industry, chaired by the Minister for Employment and Workplace Relations. Its members will have experience representing employees and employers in the building and construction industry, the idea being that employees and employers will be equally represented by the Forum. The Act gives the Forum a broad remit to provide advice to the Government on matters relating to work in the building and construction industry.

What does this mean for employers?

The building industry will no longer have a regulator with a sole focus on activities in this sector so it should prepare itself to take action and address any non-compliance with industrial laws, such as breaches of right of entry requirements, unlawful industrial action, freedom of association and coercion.

When do I need to take action?

The abolition of the ABCC will occur on 7 December 2022. Any consequential amendments and repeals as a result of the abolition of the ABCC will occur on 6 February 2023.

National Construction Industry Forum

The National Construction Industry Forum will be established to provide advice to the Government in relation to work in the building and construction industry. This follows concerns regarding how the Government would handle building and construction industry issues once the Bill abolishes the Australian Building and Construction Commission.

The Forum will be made up of the Minister for Employment and Workplace Relations (currently the Hon Tony Burke MP) (the Minister), the Minister for Industry and Science (currently the Hon Ed Husic MP), the Minister for Infrastructure, Transport, Regional The Minister must appoint one or more members who have experience representing employees in the building and construction industry, and the same number of members who have experience representing employers in the building and construction industry, including at least one member who has experience representing contractors in the building and construction industry.

The provisions establishing the Forum commence on 1 July 2023.

Building and construction industry carve-out

The building and construction industry will now no longer be subject to the multi-employer bargaining provisions of the Act. The phrase “general building and construction work” has the meaning given by paragraph 4.3(a) of the Building and Construction General On-site Award 2020 as in force at the applicable time. Paragraph 4.3(a) states:

4. the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
5. site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.3(a)(i); and

• the installation in any building, structure or works of fittings and services.”

Despite the broad definition above, the carve-out does not apply to the following work:

• civil construction;
• metal and engineering construction;
• manufacturing and associated industries and occupations;
• joinery and building;
• electrical services;
• plumbing or fire sprinkler fitting;
• black coal mining;
• mining;
• quarrying;
• concrete products;
• premixed concrete; and
• lift, escalator, air-conditioning or ventilation installation, major modernisation, serving, repair or maintenance.

Changes to equal pay

Secure Jobs, Better Pay Act 2022 (Cth) introduces measures to secure equal pay objectives for employees including to address the gender pay gap by prohibiting pay secrecy and establishing new Expert Panels.

Work of equal or comparable value

The Fair Work Act 2009 (Cth) currently allows the Fair Work Commission (FWC) to make a determination varying modern award minimum wages if the FWC is satisfied by work value reasons on application by an employee, employee organisation or the Sex Discrimination Commissioner. Work value reasons are related to any of:

• the nature of the work;
• the level of skill or responsibility involved in doing the work; or
• the conditions under which the work is done.

This provision was intended to ensure that the FWC could determine a wage floor for work of equal or comparable value.

The Act legislates that the FWC can now make determinations on its own initiative and the FWC’s consideration of work value reasons must be free of assumptions based on gender, and include consideration of whether historically the work has been undervalued because of assumptions based on gender.

Prohibiting pay secrecy

The Act introduces provisions intended to promote pay transparency by prohibiting pay secrecy clauses in contracts of employment. Employees will now have a workplace right to disclose their remuneration or any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes. Employees will also be free to ask other employees about that information.

Any terms of contracts of employment which are inconsistent with the new workplace rights will have no effect, and an employer who enters a contract of employment which contains a provision inconsistent with the new workplace rights after the provisions come into effect will contravene the Act.

New expert panels

The Act introduces the Expert Panels for pay equity, the Care and Community Sector and pay equity in the Care and Community Sector. These Expert Panels must be constituted with a majority of members who have knowledge of, or experience in, gender pay equity or anti-discrimination (Expert Panel for pay equity), or the Care and Community Sector (Expert Panel for the Care and Community Sector).

When do I need to take action?

The provisions relating to equal pay including the changes to pay secrecy will come into effect the day after the Bill receives Royal Assent (on 7 December 2022). Contracts of employment entered into before this date which contain a term inconsistent with the new workplace rights will not be affected unless they are varied after commencement.

 

If you have questions regarding the new industrial relations law, Master Electricians have unlimited access to the Employer Advice hotline. Speak direct to the experts, phone 1300 889 198. 

 

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