The Federal Government has announced the actions that will be taken from the Jobs and Skills Summit. This article focuses on those actions that will result in changes to employment laws. As expected at this stage of the process, the changes identified are general in nature and will be fleshed out as the reform rolls out.
The changes that will be made include:
- update the Fair Work Act 2009 (Act) to create a simple, flexible and fair new framework that ensures all workers and businesses can negotiate in good faith for agreements that benefit them, including small businesses, women, care and community services sectors, and First Nations people;
- legislate a statutory equal remuneration principle to improve the way pay equity claims can be advanced under the Act;
- importantly, legislating same job, same pay;
- limit the use of fix term contracts (which will increase the access of affected employees to unfair dismissal laws);
- prohibit pay secrecy clauses, and give employees a right to disclose their remuneration;
- amend legislation to give workers the right to challenge unfair contractual terms;
- set an objective test in the Act for determining when a worker is casual. (There is no mention made of changing the test for determining who is an independent contractor);
- extend the powers of the Fair Work Commission to include "employee-like" forms of work, allowing it to make orders for minimum standards for new forms of work, such as gig work;
- ensure workers and businesses have flexible options for reaching enterprise agreements, including removing unnecessary limitations on access to single and multi-employer agreements (echoing the accord reached before the Summit between the ACTU and the Council of Small Business);
- helpfully, allow businesses and workers who already successfully negotiate enterprise-level agreements to continue to do so;
- remove unnecessary complexity by making the Better Off Overall Test simple, flexible and fair (thereby making enterprise agreements more attractive for employers);
- give the Fair Work Commission the capacity to proactively help workers and businesses reach agreements that benefit them, particularly new entrants, and small and medium businesses;
- restrict the process for enterprise agreement terminations and sunset so called 'zombie' agreements'
- ensure workers have reasonable access to representation to address genuine safety and compliance issues at work;
- establish a right to superannuation in the National Employment Standards (which will make it easier for workers to recover unpaid superannuation);
- criminalise wage theft;
- enhance the Act's compliance and enforcement framework, including the small claims procedure, through increasing civil penalties for breaches;
- implement recommendation 28 of the Respect@Work Report by expressly prohibiting sexual harassment in the workplace and enabling the Fair Work Commission to resolve disputes relating to workplace sexual harassment (which will be in addition to new anti-sexual harassment order jurisdiction);
- update the Act to:
- provide greater support for employer bargaining representatives and union delegates;
- provide stronger access to flexible working arrangements and unpaid parental leave; and
- provide stronger protections for workers against adverse action, discrimination, and harassment;
- strengthen existing reporting standards to require employers with 500 or more employees to commit to measurable targets to improve gender equality;
- require businesses with 100 employees or more to publicly report their gender pay gap to the Workplace Gender Equality Agency.
These changes will be just as significant, if not more so, than the changes to the industrial relations landscape when the Act was made in 2009. We can expect many of these changes will be made in the Spring sitting of Federal Parliament, which will make for a busy lead in to Christmas for HR and IR practitioners.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.