There has been a lot happening in the industrial relations space of late, not least of all the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act), which received Royal Assent on 6 December 2022. While some of the more controversial provisions will not commence until later in the year, there are some provisions which took immediate effect.
Most notably for employers, these include:
Sunsetting of “zombie” agreements
A “zombie” agreement is the name given to certain agreements made before the Fair Work Act 2009 (Cth) (FW Act) fully commenced and that continue to operate (e.g. collective agreements, individual transitional employment agreements (or ITEAs), Australian Workplace Agreement (or AWAs), Division 2B State employment agreements, enterprise agreements made between 1 July and 31 December 2009, etc).
Under the Secure Jobs, Better Pay Act, zombie agreements that are not yet terminated will automatically terminate on 7 December 2023 unless the employer applies for, and is granted, an extension. Employers who are covered by a “zombie” agreement must also give each employee who is covered by their zombie agreement a written notice on or before 6 June 2023 advising the employee that:
- the employee is covered by a zombie agreement; and
- the zombie agreement will terminate on 7 December 2023 unless an extension request is made; and
- the sunsetting process commenced on 7 December 2022.
The Fair Work Commission (FWC) has published a list of “zombie” agreements (see list of zombie agreements). This list has information about agreements that the FWC holds but is not a complete list (as the FWC does not maintain records of any individual agreements and it does not have a complete record of collective agreements made between 2006 and 2009 (which may instead be available through the Fair Work Ombudsman)). Employers should check this list if their business is currently covered by an agreement that was made before 2010.
What this means for employers?
Employers covered by a zombie agreement should seek specific advice in relation to their situation, including the appropriateness of negotiating a replacement enterprise agreement (EA) or reverting to award conditions.
Union-initiated bargaining
Bargaining representatives for single-enterprise agreements (other than greenfields agreements) now have the power to initiate bargaining, provided that:
- the proposed agreement will replace an earlier single-EA that has passed its nominal expiry date;
- a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement;
- no more than 5 years have passed since the nominal expiry date; and
- the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.
What does this mean for employers?
Employers no longer have to agree to bargain or initiate bargaining and can be compelled to the bargaining table by employee bargaining representatives (usually unions) using a far easier mechanism than the existing majority support determinations or scope orders. Employers with EA’s that have passed their nominal expiry date should consider their existing bargaining strategies to re-negotiate a new EA for their organisation.
Terminating expired EAs
Bargaining representatives for single-enterprise agreements (other than greenfields agreements) now have the power to initiate bargaining, provided that:
- the proposed agreement will replace an earlier single-EA that has passed its nominal expiry date;
- a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement;
- no more than 5 years have passed since the nominal expiry date; and
- the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.
What does this mean for employers?
Employers no longer have to agree to bargain or initiate bargaining and can be compelled to the bargaining table by employee bargaining representatives (usually unions) using a far easier mechanism than the existing majority support determinations or scope orders. Employers with EA’s that have passed their nominal expiry date should consider their existing bargaining strategies to re-negotiate a new EA for their organisation.
Errors in EAs
The FWC has been given broader power to vary EA’s to correct or amend obvious errors, defects or irregularities (whether in substance or in form), with any variation operating from the day specified in the decision to vary the EA.
Pay secrecy
The Secure Jobs, Better Pay Act also provides employees (including former employees) with an immediate “workplace right” to disclose (or not disclose) or to ask another employee (whether at their workplace or at a different workplace) about their remuneration and/or the terms and conditions of employment that are reasonably necessary to determine remuneration outcomes. Adverse action taken because of these workplace rights is now actionable under the general protections provisions in the FW Act.
In addition, any pay secrecy terms included in a fair work instrument (such as an award or enterprise agreement) or an employment contract entered into, on or after 7 December 2022, are void and unenforceable.
Employers should otherwise be aware that from on or after 6 June 2023, it will be an offence to include such terms in a fair work instrument or employment contract.
What does this mean for employers?
- Review your existing employment contracts, including how “confidential information” is defined and remove any “pay secrecy” clauses.
- Review existing workplace remuneration policies and pay structures and consider the grounds for which pay is based.
- Identify whether pay discrepancies exist between genders so that your organisation can rectify any issues moving forward and be ready to address salary concerns.
Anti-discrimination
“Breastfeeding”, “gender identity” and “intersex status” have been added to the list of protected attributes in the FW Act.
What does this mean for employers?
Review and update your existing workplace policies, procedures and anti-discrimination training materials to ensure these additional attributes are captured and discussed amongst your workforce.
What’s next?
The Federal Government has indicated its industrial relations agenda will be high on its priority list for 2023. We are expecting to see the introduction of federal wage theft laws and minimum wages and conditions for “employee-like” gig economy workers. We will also see expansive changes to enterprise bargaining come into effect from June 2023 (unless an earlier date is proclaimed), including the contentious “single-interest enterprise bargaining” stream and other amendments included in the Secure Jobs, Better Pay Act. Stay tuned for more updates.
In the meantime, if your business needs assistance navigating these new reforms or requires employment or industrial relations advice, please reach out to one of our team on (03) 9448 9600.
The above is general information, which is current at the time of publication, and should not be taken as legal advice.
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