There has been considerable commentary about the proposed changes to the Fair Work Act in the Secure Jobs, Better Pay Bill. In particular, the inclusion of multi-employer bargaining as opposed to single employer or single site bargaining approach (including the right to involve non-union enterprises).
With the support of Senator Pocock these changes are likely to become a reality and business will start examining these proposed changes with some urgency.
What are the key proposed changes?
The Better off Overall Test (BOOT)
The BOOT will now be assessed in a global (over all terms) approach moving forward. This should simplify and speed up this process.
Enterprise Bargaining
The significant change in this area is enterprise bargaining expanding to allow employees and unions to compel multiple employers to bargain for an enterprise agreement.
Equal Remuneration
The framework for equal remuneration will also be expanded under the proposed amendments to the Bill.
Fixed-Term Contracts
The Bill would limit the use of fixed-term contracts, subject to limited exceptions. Civil penalties would apply to an employer who enters a fixed-term contract in contravention of the provisions.
Flexible Work
The Bill proposes amendments to the National Employment Standards to expand the circumstances in which an employee may request flexible working.
Positive Duty to Prohibit Sexual Harassment
The Bill introduces a new prohibition on sexual harassment. The prohibition would extend to sexual harassment by third parties, such as customers or clients.
Anti-Discrimination and Special Measures
The Bill introduces three further protected attributes into the anti-discrimination provisions of the FW Act – breastfeeding, gender identity and intersex status.
Pay Secrecy
The Bill would introduce new workplace rights, expressly allowing employees to ask one another about, and to disclose, their remuneration and relevant conditions.
The Changes to Enterprise Bargaining
Some would argue that the most significant change proposed is in the enterprise bargaining provisions. Expanding the Act to allow employees and unions to compel multiple employers to bargain for an enterprise agreement. This requires a majority of employees to support this process where the employers have ‘clearly identifiable common interests.’ Bargaining across multiple employers could also occur in low-paid industries such as aged care, disability care and early childhood education.
In both cases, industrial action can occur across all relevant employers, subject to conditions including prior conciliation by the Fair Work Commission.
This change does need serious consideration by organisations especially in terms of the discretion afforded the Fair Work Commission.
Importantly, this change in the enterprise bargaining provisions should not be viewed as a change independent to the other changes outlined in the Secure Jobs, Better Pay Bill.
A Shift in the Balance
These changes well and truly create a potential pathway for the trade union movement back into the centre of Australian workplaces, especially if the changes are considered as interdependent.
While in some countries like Singapore or Japan there has been a long history of employers, employees, trade unions and government cooperating to establish five-year industry plans for the overall success of the sector and the country, this has not been the traditional systematic approach in Australia. The question remains whether all parties in Australia are ready for some of the implications of a more collaborative approach.
Quality leadership should bring all parties together on the issues important to the success of the business or the success of the industry sector more widely. Given the global uncertainty at present and the pressures on the Australian economy it may be considered a failure of all parties if a constructive approach does not emerge from these proposed changes.
Boards and executive teams across Australia are starting to examine the implications of these proposed changes in the Fair Work Act from both a strategy and a capability perspective.
Ricky Willmott
Partner, Search & Advisory