News & Views

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Act) passed through Parliament in early December 2022, and received Royal Assent on Tuesday 6 December 2022.

The Act amends workplace relations laws relating to bargaining, job security, gender equality, compliance and enforcement, workplace conditions and protections and workplace relations institutions.

The key changes include but are not limited to:

• Enterprise Bargaining: Some of the most contentious changes in the Act include the extension of the single interest bargaining authorisation, to allow bargaining representatives (such as the unions) to compel employers sharing “clearly identifiable common interest” (this may potentially include competitors and even external companies within supply chains) to engage in multi-enterprise bargaining, regardless of their interest in doing so. Small electrical contractors (fewer than 20 employees) and companies that already have an individual single enterprise agreement will be exempt. Additionally, civil construction will be carved out from all streams of multi-enterprise bargaining and where companies have less than 50 employees, the onus of proving the “common interest” test shifts to the bargaining representative (i.e. Unions).
• Institutional Changes: The Act abolishes the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC). Their functions will be transferred to the Fair Work Ombudsman (FWO) and Fair Work Commission (FWC), respectively. The Code for the Tendering and Performance of the Building Work 2016 which has already been stripped back earlier this year, will be repealed along with other parts of the Building and Construction Industry (Improving Productivity) Act 2016. A National Construction Industry Forum will be established to provide advice to the Government about work in the building and construction industry. 
• Job Security and Gender Equality: The objects of the Act will be expanded to include job security and gender equality. Fixed term contracts will not be allowed to exceed a period of 2 years (with some exceptions such as apprenticeships) and employers have a period of 12 months to adjust to this particular change. Pay secrecy clauses are to be banned and a civil penalty for contravention would be included.
• Flexible Working Arrangements (FWA): The Act expands the scope for employees to make a FWA request, require businesses to give reasons for the refusal of such a request, limit the reasons for refusal and provide the FWC arbitration powers to deal with any disputes.
• Sexual Harassment and Discrimination: The Act introduces a broad prohibition against sexual harassment in connection with work. This includes applying the wider definition of ‘worker’ under the Work Health and Safety Act 2011 (Cth) and expanding the stop sexual harassment order jurisdiction of the FWC which will enable even prospective workers to seek such orders. The Act also extends the protections against discrimination by including the attributes of breast feeding, gender identity and intersex status.

The amendments will commence in stages over a 12 month period. To see the timeline of these stages, visit the Fair Work Commission website here >

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022

The Government committed to implementing 55 recommendations of the Australian Human Rights Commission’s Respect@Work Report to legislate and strengthen laws that prevent sexual harassment. In lieu of 7 of these recommendations, the Respect at Work Bill 2022 was introduced on 27 September 2022. On 28 November 2022, the Bill passed both houses of the Federal Parliament, and is now awaiting Royal Assent. 

It includes several changes, but one of the main amendments is the insertion of a new provision in the Sex Discrimination Act 1984 (Cth) to introduce a positive duty on employers to take “reasonable and proportionate measures” to eliminate workplace sexual harassment, victimisation and sex discrimination.

Examples of “reasonable and proportionate measures” may include employers implementing policies and procedures, monitoring and collecting data, as well as delivering training and education on a regular basis. Essentially, there is a shift in focus to adopt preventative measures, with the responsibility shifting to those who can prevent it. This positive duty is to operate concurrently with the existing duties in WHS laws, which require employers and principals who engage contractors to provide a safe working environment for workers.

Member Resources

NECA ran a national webinar in early December to discuss the recent major changes to Australia's Industrial Relations landscape. You can view the video here: https://vimeo.com/779163502

Download the PowerPoint slides by clicking here >  

This information is only a guide and is not intended to be legal advice. For more information, contact the NECA SA/NT Workplace Relations Advisor, Dain Venning on (08) 8272 2966.