On 9 December 2020, Federal Industrial Relations Minister, Christian Porter introduced the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill) in parliament. A summary of the key proposals is set out below.

It’s important to note these changes have not yet been finalised or passed by Parliament. VCCI will keep members informed as this matter progresses.

Key proposals

1. Casual employment

To help create certainty and avoid disputes regarding casual employment the Bill proposes three new approaches:

• A new definition of a casual employee;
• A uniform approach to casual conversion, requiring employers to offer casual conversion after 12 months employment provided the employee has worked a regular pattern of hours for six months. Importantly, it provides employers the right to refuse, or not offer, conversion where “reasonable business grounds” exist; and
• To stop “double dipping”. The Bill proposes a much-needed offset enabling employers who have mistakenly categorised an employee as casual to reduce permanent entitlements by the sum of any casual loadings paid. This offset will extend to both prospective and retrospective claims.

2. Modern awards

Many businesses have benefited from the flexibilities afforded in the temporary JobKeeper provisions. The Bill proposes to continue to support businesses in the hardest hit industries, such as hospitality, by creating “simplified additional hours agreements” enabling a business, to “flex-up” part-time workers’ hours without having to pay overtime – provided the employee agrees.

The flexibilities will also continue to afford some businesses the ability to change an employee’s duties or location of work.

While these changes won’t be available for all (currently limited to 12 modern awards), if they are successful and prove beneficial, VCCI will consider advocating for these flexibilities to be introduced across a broader range of modern awards.

3. Enterprise agreement making

The Bill intends to re-energise and re-focus agreement making with a simplified process, quicker timeframes, and better tools. The ‘Better Off Overall Test’ (BOOT) will still be part of the approval process; however, the Bill proposes a more reasonable approach to avoid theoretical or hypothetical scenarios.

4. Greenfields agreements

Recognising Greenfields Agreements plays a significant role in attracting much-needed investment. The Bill proposes to extend the length of Agreements for new worksites to eight years for major projects worth at least $500 million and for projects valued at more than $250 million deemed of national or regional employment significance by the federal minister.

5. Compliance and enforcement

The Bill proposes to override State-based laws, with the introduction of new Federal offences for deliberate underpayment. A maximum jail term of four years and fines of up to $1.1 million for individuals and $5.5 million for companies would apply.

A larger role for the Fair Work Ombudsman is also proposed, as a means to educate and support business by providing improved levels of information and advice.

6. The Fair Work Commission

The Bill proposes to give the Fair Work Commission the power to dismiss frivolous and vexatious claims which should save businesses considerable time and expense defending such claims. In addition, the Bill proposes to extend the Fair Work Commission’s jurisdiction to deal with some underpayment claims.

What’s next?

The Bill will be debated throughout 2021 and the Victorian Chamber will continue to monitor and track its progress as well as advocate for our members.

If you have questions please contact our member Workplace Relations Advice Line on 03 8662 5222 and access up to date information and tools on our website here.