'These laws will make our workplace system more litigious and complex, sending workers and businesses backwards'
Employer groups are voicing disappointment about sweeping changes to industrial relations laws in Australia.
“These laws will do nothing to help businesses grow, to become more productive, and to pay higher wages,” said Andrew McKellar, CEO of the Australian Chamber of Commerce and Industry. “These laws will only make our workplace system more litigious and more complex, sending Australian workers and businesses backwards.”
Government has opened the door “to more disruption, more strikes and a less innovative economy,” said Jennifer Westacott, CEO of the Business Council, adding that since this is the biggest change to the country’s workplace laws in 30 years, it deserved proper scrutiny.
“A workplace relations system that leaves our feet stuck in cement won’t grow wages for Australians but does risk seeing jobs go overseas,” Westacott said.
The laws bring a new level of uncertainty into the economy in a period already plagued by uncertainty, she said.
“Time will tell just how many new strikes or delayed and missed pay rises workers endure as a result of these new laws, but businesses will be monitoring their impact in the lead up to the welcome statutory review,” she said.
Back in October, Tony Burke, minister for employment and workplace relations, said: “We want to give workers a better deal and a brighter future.”
Employee protections, bargaining changes
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 passed both houses of Parliament on 2 December. It amends workplace relations laws relating to bargaining, job security, gender equity, compliance and enforcement, workplace conditions and protections and workplace relations institutions. Amendments will be made to existing legislation once the bill after it receives Royal Assent, according to the government.
The Albanese government has faced a growing backlash over elements added after its jobs and skills summit, including a return to compulsory arbitration of intractable disputes and the expansion of multi-employer bargaining, according to the Guardian.
“To those larger businesses that used to negotiate and stopped negotiating because of the Better Off Overall Test [BOOT] became unbelievably complex, that is now simplified and those businesses can come back to the bargaining table again,” Burke said. “To those workers who’ve been trapped on ‘zombie agreements’ back from the WorkChoices era for nearly 20 years, you are about to catch up to the rest of the Australian workforce.”
WorkChoices was the name given to changes made to the federal industrial relations laws in Australia in 2005, amending the Workplace Relations Act 1996.
The new law will mark Australia's largest industrial relations reform since the inception of the Fair Work Act 2009 (FWA), according to a release from Colins Biggers & Paisley lawyers, and the key relevant changes for employers include bargaining and employee protections.
Bargaining changes
Under the Secure Jobs, Better Pay bill, a union or other representative may initiate bargaining for a replacement single-employer agreement by providing a written request to renegotiate to the employer.
“Additionally, representatives will no longer be required to obtain a majority support determination. Stricter provisions requiring employers to bargain in good faith will also be included,” the firm said.
And in one of the “more controversial” changes, the reforms will expand the operation of multi-employer bargaining (MEB) by introducing new “streams” through which agreements can be made, said the release from Colins Biggers & Paisley.
The workplace minister will also be able to declare that an industry or occupation is eligible for supported MEB, “with the FWC being granted power to make a supported bargaining authorisation that requires employers to bargain together.”
But the operation of the single interest bargaining stream will drag employers into expensive and arduous bargaining negotiations that favour unions at all costs, McKellar said.
“Indeed, under these changes, business owners who are roped into multi-employer bargaining can expect to dedicate more than four hours a day, for up to six months, participating in bargaining negotiations and away from their business,” he said.
The expansion of multi-employer bargaining will open the door to crippling and destructive industrial action across whole sections of the economy, Westacott said.
“The extraordinary possibility that large businesses could be compelled to bargain together and set pay and conditions is anti-competitive, bad for small businesses and bad for wages growth,” she said.
Also of note: The BOOT is intended to be simplified to make bargaining and the approval process easier.
These reforms are welcome, said Westacott, and will reduce the complexity of getting agreements that pay Australians more.
“This… will restore the BOOT to being a global assessment rather than a line-by-line comparison with the award,” she said.
In October, Queensland employees received enhanced parental leave entitlements as well as further protection against workplace sexual harassment following new amendments to the state's Industrial Relations law.
Employee protections
In the area of employee protections, the new bill states that pay secrecy clauses and clauses that prevent employees from discussing pay in employment contracts will be prohibited — in an attempt to increase renumeration transparency and reduce gender-based pay discrimination, according to the release from Colins Biggers & Paisley.
There are also minor changes meant to align the FWA with other anti-discrimination legislation by including protection against discrimination on the basis of breastfeeding, gender identity and intersex status as protected attributes.
Other amendments prohibit sexual harassment in connection with work, and employers may be vicariously liable for sexual harassment by employees, unless they can demonstrate they took all reasonable steps to prevent the conduct from occurring.
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, the firm said. Fixed-term contracts that provide for extension greater than two years, or for more than one extension, are also prohibited and employers will be unable to offer a third consecutive fixed-term contract for substantially the same role.
Employees will be able to request flexible work arrangements in a wider range of circumstances, including on the grounds of family and domestic violence.
