Industrial Relations Reform

Late 2022, the Australian Parliament passed laws which significantly amended the Fair Work Act 2009 (FW Act) and introduced new rights for employees and obligations on employers.

In late 2022, the Australian Parliament passed laws which significantly amended the Fair Work Act 2009 (FW Act) and introduced new rights for employees and obligations on employers.

The Australian Government has indicated these amendments are the first package of several reforms to the industrial relations landscape across Australia. Later this year, the Government is expected to propose amendments to existing laws and create new laws altering the way casual employees and independent contractors are engaged and regulated.

MGA believes the first package of reform, outlined below, was expedited through the Australian Parliament with an inadequate period of consultation. Despite this, MGA met with senior government officials to advocate the interests of members, making a strong submission to the Australian Parliament Senate’s inquiry into the reforms.

Read a copy of our submission here MGA has stated on several occasions the expectation for the Australian Government to engage in extensive meaningful consultation with key stakeholders when considering future industrial relations reform.

The first package of reforms passed into law late last year, has several elements commencing operation in stages. MGA will advise members as key elements commence.

In summary, the key changes likely to affect members are:

» Objects of the Fair Work Act

The object or purpose of the Fair Work Act has been updated to include the promotion of “job security and gender equity”. As the Fair Work Commission (FWC) is guided by the objects in the FW Act, this new provision will have a bearing on the decisions made by the FWC. MGA expects this will be particularly relevant when the FWC makes decisions with respect to Modern Awards and Enterprise Agreements.

» Flexible Working Arrangements

If an employer declines an employee’s request for flexible working arrangements, the employee will have the option of applying to the FWC to have the decision reviewed and potentially overturned.

Multi-employer bargaining

A new system of enterprise agreement bargaining will come into effect that will allow for enterprise agreements and bargaining across multiple employers which have a common interest and are reasonably comparable. Employers with 20 or more employees (by headcount) may be required to engage in multiemployer bargaining if a majority of employees in a workplace vote to commence this process. Employers with less than 50 employees will be able to make an application to the FWC to opt out of multi-employer bargaining. MGA is currently assisting the FWC, in its consultation with stakeholder groups, to implement the administrative processes necessary for the consideration of enterprise agreement applications within its jurisdiction.

» Legacy enterprise agreements

Enterprise agreements which came into operation prior to the FW Act in 2009 will automatically terminate on 7 December 2023, unless the FWC grants an extension to their operation. Members may find their employees become automatically covered by a Modern Award if a legacy agreement is terminated. MGA is currently planning a program of support to assist members who will need to make this transition and will be sending further information shortly.

» Sexual harassment

Employers will be liable for sexual harassment in their workplaces which is perpetrated by non-employee workers and contractors. Employers will be liable for sexual harassment which occurs in their workplaces unless they can demonstrate they took “all reasonable steps” to prevent it. The FWC will now have the power to order compensation to be payable to victims of sexual harassment.

» Fixed term contracts

Unless a limited set of exceptions apply, employers will be prohibited from engaging employees on fixed-term contracts for more than two years, or consecutive contracts adding up to more than two years. A new “Fixed Term

Contract Information Statement” will need to be provided to any employees engaged on fixed-term contracts, regardless of their duration.

» Pay secrecy

Terms in contracts of employment and enterprise agreements which prohibit an employee from disclosing their remuneration to another person will be unlawful and unenforceable.

Reforms will impact some members more than others. MGA’s Employment Law team is monitoring the implementation of these reforms and will provide further updates explaining any compliance action required.

Please contact our Employment Law team on 1800 888 479 or legal@mga.asn.au to discuss your business’ particular circumstances.