Workplace Relations Changes Small Business Needs to Watch For

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21 Sep, 2022

The past 18 months have been extremely quiet on the employment relations front in Australia. This is common during the lead-up to Federal elections, but we usually see changes to legislation take place in the first sitting of Parliament.

The new Labor government has taken a different approach, with their Jobs and Skills Summit held on 1-2 September 2022. The Summit included unions, employers, civil society and governments to discuss shared economic challenges and the underpinning workplace relations environment.

The Jobs + Skills Summit Outcomes report discussed needed workplace relations reforms and strategies to achieve those reforms.

We expect to see these proposed reforms start to trickle their way into the parliamentary calendar late in 2022.

Changes to Paid Family and Domestic Violence leave

The lower house has passed changes to the Fair Work Act to increase the entitlement to ten days of paid leave for full-time, part-time and casual employees, extending the definition of family and domestic violence to include the conduct of a current or former intimate partner of an employee, or a member of an employee’s household; and extending the entitlement to paid family and domestic violence leave to non-national system employees once the International Labour Organization Convention on Violence and Harassment (No. 190) comes into force for Australia.

This bill has now gone to the Senate but has not yet passed through for final approval. Once approved, we will amend our HR products to reflect the changes.

Fair Work Act Framework Changes

The Jobs and Skills Summit foreshadowed significant changes in workplace relations negotiations.

These changes were listed as immediate actions in the Jobs + Skills Summit Outcomes report, which suggests we will see new legislation introduced late in 2022 or early 2023.

The Government will update the Fair Work 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
    • Ensures workers and businesses have flexible options for reaching agreements, including removing unnecessary limitations on access to single and multi-employer agreements
    • Allows businesses and workers who already successfully negotiate enterprise-level agreements to continue to do so
    • Removes unnecessary complexity for workers and employers, including making the Better Off Overall Test simple, flexible and fair
    • Gives 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
    • Ensures the process for agreement terminations is fit for purpose and fair, and sunsets so-called ‘zombie’ agreements

The Government will also update the Fair Work Act to:

  • Provide proper support for employer bargaining representatives and union delegates
  • Provide stronger access to flexible working arrangements and unpaid parental leave so families can share work and caring responsibilities
  • Provide stronger protections for workers against adverse action, discrimination, and harassment

Other Workplace Relations Changes

The Outcomes Report also foreshadowed longer-term changes to flexible working arrangements and unpaid parental leave, as well as changes to employee protection against adverse action, discrimination and harassment.

The Summit flagged that there would be further work done to:

  • Amend relevant legislation to give workers the right to challenge unfair contractual terms
  • Initiate a detailed consultation and research process on the concept of a living wage, reporting back in late 2023.
  • Initiate a detailed consultation and research process considering the impact of workplace relations settings (such as rostering arrangements) on work and care, including childcare
  • Consider allowing the Fair Work Commission to set fair minimum standards to ensure the Road Transport Industry is safe, sustainable and viable.
  • Ensure workers have reasonable access to representation to address genuine safety and compliance issues at work
  • Consider possible improvements to Modern Awards and the National Employment Standards

These are all significant legislative changes, so we do not expect to see these changes introduced within the next 12 months.

Existing Commitments Yet to Be Enacted

The Jobs and Skills Summit Outcomes included a list of existing workplace commitments that we anticipate will be introduced in this Parliamentary term. Again, these are significant changes, and most will impact small businesses.

  • Include gender pay equity and job security in the objects of the Fair Work Act and legislate a statutory equal remuneration principle to improve the way pay equity claims can be advanced under the Fair Work Act
  • Legislate same job, same pay
  • Establish two new expert panels in the Fair Work Commission for pay equity and the care and community sector
  • Prohibit pay secrecy clauses, and give employees a right to disclose their remuneration if they wish
  • Set an objective test in legislation for determining when a worker is casual
  • 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
  • Limit the use of fixed-term contracts
  • Establish a right to superannuation in the National Employment Standards
  • Criminalise wage theft
  • Enhance the Fair Work Act compliance and enforcement framework, including the small claims procedure through increasing civil penalties for breaches to ensure workers’ wages are protected
  • 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
  • Restore balance to our Fair Work institutions
  • Establish the Secure Australian Jobs Code to prioritise secure work in government contracts and ensure that government purchasing power is being used to support business that engage in fair, equivalent, ethical and sustainable practices

Equal Opportunities

The Jobs and Skills Summit also looked at other areas, including promoting equal opportunities and reducing barriers to employment. Some key outcomes that may impact small businesses:

  • Require businesses with 100 employees or more to publicly report their gender pay gap to the Workplace Gender Equality Agency
  • Put in place a Carer Friendly Workplace Framework which includes a self-assessment tool and learning modules, for businesses to be recognised as a carer friendly workplace
  • A Visitor Economy Disability Employment pilot to deliver place-based employment outcomes by connecting small businesses, employment service providers and jobseekers with disability

Conclusion

Hopefully, small businesses have used the quiet workplace relations period over the past 18 months to get their essential systems, documentation and processes in place.

We expect to see significant workplace legislation changes over the coming months. When these changes are enacted, we will update our HR Manual suite of products to reflect the changes to ensure our micro and small business owners stay abreast of current legislation to remain compliant.

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AEM01@EM

HR Author and Lecturer with over 25 years' experience in human resources and workplace relations in Australia. Lead Author of Instant HR Policies & Procedures, NDIS Direct Employment HR Manual, and Employee Performance Reviews: Tips, Templates and Tactics.

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