Employment changes forecasted for 2023

In October 2022, Parliament introduced the For Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, which will likely not be enacted until 2023, subject to further amendments and debate. Once enacted, the Bill will make a number of changes to the Fair Work Act 2009 (Cth) (FWA) and associated legislation.

The following changes can be expected:

Protections against sexual harassment and discrimination

The Bill includes enacting a comprehensive ban on sexual harassment at work which applies to all employees, including prospective employees. In doing so, the Bill will strengthen the protections afforded to employees (see more at Respect@Work)

Aggrieved employees will be able to apply to the Fair Work Commission (FWC) to deal with sexual harassment disputes and will have authority to resolve such disputes through mediation, conciliation or by making non-binding recommendations.

Employers should ensure they review their sexual harassment and discrimination policies and procedures prior to enactment of the Bill to avoid getting caught up in costly and onerous intervention by the FWC.

Limits to Fixed Term employment contracts

Fixed Term employment contracts expire after a predetermined amount of time (e.g. 12 months or 2 years etc.), or upon completion of a particular task or project. Generally, the contract automatically comes to an end at the end of the specified period or completion of the task or project, which entitled the employer to end the employment with immediate effect without any reason or a requirement to provide notice or redundancy pay.

The Bill seeks to restrict the use of Fixed Term employment contracts, particularly those used for arbitrary lengths of time and have no connection to finance, accomplishment of specific identified objectives or training arrangement. If approved, the Bill will prevent employers from hiring workers under Fixed Term contracts which:

• is under consecutive Fixed Term contracts for the same role or job that exceeds two (2) years in total, or is for the same role for a period of time longer than 2 years; or
• can be extended or renewed more than once for the same role.

There will be significant ramifications for employers that currently rely on rolling Fixed Term contracts which intends to keep workers for durations longer than two years. Employers will need to engage these workers under permanent continuous contracts.

Pay secrecy prohibited

The Bill will prohibit the inclusion of pay/wage secrecy clauses in employment contracts, or which otherwise seeks to prevent employees from disclosing information about their pay and other information about their employment terms and conditions which are reasonably required to determine renumeration outcomes.

The FWA will be amended to consider an employee’s ability to disclose such information as a ‘workplace right’ and thereby making in unlawful for employers to take any adverse action should an employee disclose such information. 

Simplified enterprise bargaining rules

Significant changes to enterprise bargaining rules under the FWA will include:

• requiring an employer to start negotiations if they receive a request to do so from an employee representative and they have a single enterprise agreement in place that has passed its nominal expiration date.
• eliminating the complexity of the Better Off Overall Test (BOOT) and placing more emphasis on a global assessment of whether each employee would be better off overall if the enterprise agreement is implemented.
• restricting the circumstances under which an enterprise agreement can be unilaterally terminated after its nominal expiration date in order to prevent the reduction of employees’ entitlements.
• eliminating some of the stringent pre-approval formalities currently in place for the FWC to be satisfied that an agreement has been “genuinely agreed to” by employees, such as:
  • the seven day “access period”, during which certain actions must be taken.
  • removing the restriction that the vote for the agreement can only be held 21 days after bargaining has begun and requiring employers making single interest employer agreements, supported bargaining agreements, or cooperative workplace agreements to give employees a “notice of employee representational rights” (NERR requirements still apply to single enterprise agreements)
• authorising the FWC to examine an enterprise agreement at a party’s request and allowing the Fair Work Commission to change or remove a clause from an enterprise agreement that doesn’t adhere to the BOOT.

Expansion of multi-employer bargaining

The Bill will allow for:

• cooperative workplace agreements.
• Supported bargaining agreements (expanding the scope of low paid bargaining agreement provisions).
• Single-interest employer agreements.

Whilst further amendments to the Bill are expected, the current drafting  provides that:

• Supported bargaining agreements will be available to employees and employers who struggle to negotiate at the single-enterprise level due to a lack of resources, expertise or influence (e.g. aged care, disability care and early childhood education and care industries specifically).
• Single-interest employer agreements will enable employees of different employers to be covered by a single-interest employer enterprise agreement, by allowing a union or other employee bargaining representative to request a single-interest employer authorisation without the employer’s assent (if backed by the majority of employees). The FWC may authorise a single-interest employer agreement if, after taking into account the location, regulatory environment, nature of the relevant enterprise, and the terms and conditions of employment, it determines that the employees and the nominated employers have a common interest.

Abolishment of the Australia Building and Construction Commission

The Bill seeks to amend the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) following previous amendments to the Code for the Tendering and Performance of Building Work 2016 that saw the ABCC effectively lose its function and practicality. The BCIIP Act will focus on work health and safety for building workers and in turn, the ABCC will be abolished.

If you are an employer or an employee, and you have any questions about employment law matters or the proposed changes under the Bill, please do not hesitate to contact our team.