MAJOR CHANGES TO IR LAWS

THE NEW IR LAWS AND CIVIL MAJOR CHANGES TO IR LAW

The largest reform of Australian Industrial Relations law since Work Choices has been passed. What are some of the major changes impacting civil, and what did the CCF do for industry?

As we have previously reported, CCF NSW has been working with other CCF branches and the CCF National office to develop a response to the Federal Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act). As CCF NSW is the only CCF branch that has in-house Industrial Relations legal resources, we were able to provide significant support to the CCF’s advocacy position.

A detailed submission was made by the CCF on 11 November 2022 to the first draft of the Act and the Amendments released on 9 November. It can be found at the CCF National website, civilcontractors.com.

The consequences of this Act to the civil infrastructure industry could be profound. Local, State and Federal economies rely very heavily on productive expenditure in the construction of the nation’s critical infrastructure – this Act risks worsening productivity, investment, and jobs. CCF, along with a great many peak industry bodies, argued that passing it into law should be delayed until the consequences could be fully explored. A flurry of negotiations subsequently occurred between the Government and stakeholders – including independent Senators whose support was needed to overcome the Federal Opposition’s rejection of the Bill. Consequently, the Act was passed on 2 December by both Houses of the Federal Parliament. At time of writing, it awaits Assent, at which time it will be law.

A summary of some of CCF’s position and the final outcome follow.

1. MULTI-EMPLOYER BARGAINING One of the most significant industrial changes in the Act is to allow protected industrial action to be taken in pursuit of multi-employer bargaining.

The provisions in the Act are designed to allow the unions to force a large number of competing, private sector businesses to become covered by multi-employer agreements. This would have a large, negative impact on productivity, investment and jobs. CCF position: The CCF’s fear was that the new provisions would assist unions to achieve industry-wide agreements by classic pattern bargaining, where a union reaches an agreement with some major companies, and then smaller employers – who do not have equal negotiating power – are encouraged to become covered by the same agreement. The CCF opposed these amendments and argued that industrial action should not be permitted in negotiations for multi-enterprise agreements. Single-enterprise bargaining is vital to workplaces to determine the framework that best works to regulate working conditions and facilitate productivity overseen by the Fair Work Commission (FWC). Businesses and their workers who have already successfully negotiated single-enterprise agreements should continue to be able to do so.

Whilst the Bill provides an exclusion from multi-employer bargaining for small businesses (15 employees) CCF submitted that in the civil industry a small business should be defined on a large scale. Outcome: Most, but not all of civil has been excluded from multiemployer bargaining (see Point 2 below). Small businesses with fewer than 20 employees are excluded and businesses that have fewer than 50 employees would be able to exit multi-enterprise bargaining. 2. MUCH OF CIVIL CONSTRUCTION CARVED OUT OF MULTI-EMPLOYER BARGAINING The draft Bill provided unions with the ability to sweep multiple employers in under a completely different employer’s Employment Agreement (for example, subcontractors where the Head Contractor has an EA). This could mean employers with effectively no union presence may well find themselves operating under a union EA. CCF position: CCF strongly opposed these provisions. We argued that all work on civil related projects should be excluded from multi-employer bargaining as there was no reasonable explanation why civil construction work should not be excluded.

Outcome: In a great result for the wider civil industry “civil” has been added to the exemption, and so most civil businesses may not be affected by multi-employer bargaining. HOWEVER, “civil” is not defined using a common definition, but rather is defined using clause 4.3(b) of the Building & Construction General On-site Award 2010 with some

limitations. The following key area will not be exempt, meaning multi-employer bargain will be possible in this work: ¿ the Asphalt Industry Award has expressly been excluded; and ¿ the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity is excluded, even though all such work is covered by 4.3(b). 3. A UNION CAN FORCE AN EMPLOYER TO BARGAIN FOR A REPLACEMENT EA BY MAKING A WRITTEN REQUEST TO THE EMPLOYER. Under the Bill’s provisions, a union was able to make a written request to an employer to bargain, and if the employer agreed to bargain, bargaining would formally commence. If the employer refused to bargain, the union would need to apply to the FWC for a majority support determination. Under the Act it is not necessary for a union to obtain the agreement of the employees to bargain or to obtain a majority support determination from the FWC. CCF position: CCF opposed this provision as it was considered grossly unfair and inappropriate, especially in circumstances when both the employer and the majority of its employees do not wish to bargain.

Outcome: It has become the law, with some limitations. Changes were made to the threshold for involvement of the FWC, and increase the FWC’s power in arbitrating bargaining disputes. 4. ABOLITION OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION (ABCC) The civil industry operates business in a space with Australia’s most militant union and Australia’s most recidivist cooperate entity - the CFMMEU. As prior law enforcement options proved ineffective, the ABCC was created to control this entity. CCF position: As the Government proposed to transfer the ABCC functions to the Fair Work Ombudsman (FWO), CCF expressed deep concern that the abolishment of the ABCC would have a significant negative impact on our industry without a “like replacement”. CCF submitted that, in this case, the FWO should receive the same funding as the ABCC was receiving, with all resources to be relocated from the ABCC to the FWO.

CCF also opposed the repeal of the Building Code 2016 and Building & Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) which provide higher penalties than those in the FWA for unions who engage in unlawful industrial action and breaches of right of entry laws. Outcome: The ABCC functions were transferred to the FWO. The Building Code 2016 and the BCIIP Act have been repealed (cancelled). The recent Federal Budget did not provide the FWC with the budget of the ABCC.

The newly created National Construction Industry Forum is to provide advice to Government on measures that will ensure construction contractors are paid accurately and in a timely manner. 5. ANTI-DISCRIMINATION AND THE PROHIBITION AGAINST SEXUAL HARASSMENT The Bill proposed to align the Fair Work Act (FWA) with other anti-discrimination legislation by including protection against discrimination on the basis of breastfeeding, gender identity and intersex status as protected attributes.

Amendments were proposed to include Part 3-5A in the FWA to expressly prohibit sexual harassment in connection with work.

CCF position and the Outcome: CCF supported, in principle, these provisions, and it is now the law.

6. ENTERPRISE AGREEMENT APPROVAL AND BETTER OFF OVERALL TEST (BOOT) The Act will simplify both the enterprise agreement approval requirements by implementing a principles-based approach and the Better Off Overall Test BOOT as a global assessment.

CCF position and the Outcome: CCF supported, in principle, these provisions and it is now the law.

7. OTHER ELEMENTS OF RELEVANCE ¿ The objects of the Fair Work Act (FWA) and Modern Awards will be amended to include the right to secure work and greater gender equity in the workplace. ¿ The offering of fixed-term contracts will be limited in 2023 and beyond to circumstances where the period of engagement is less than two years. ¿ Employees will be able to request flexible work arrangements in a wider range of circumstances, including on the grounds of family and domestic violence. ¿ Pay secrecy clauses, which prevent employees from discussing pay in employment contracts, will be prohibited. Employees now have a positive right to disclose (or not disclose) information about their remuneration to any other person. Existing secrecy clauses will be rendered invalid.

CCF NSW will continue to update you on this important issue. If you have any questions, please call our Compliance Support Unit on 9009 4000.