The Federal Government has indicated it wants to have the Bill finalised and pass through Parliament by 1 December.

The Bill’s intentions are to boost wage equity, increase the Fair Work Commission’s (FWC’s) power, and make bargaining more accessible.

The Bill is a large, significant, document that will fundamentally impact employer-employee relationships and the Australian Industrial Relations environment.

The Australian Chamber of Commerce and Industry (ACCI) has stated the Bill in its current form should not be passed by Parliament, as the Bill would adversely impact Australia’s bargaining system. The Bill requires substantive further public consultation. The Victorian Chamber supports this position.

The current timeline is inadequate for genuine consultation on a Bill that will have fundamental, significant and long-lasting implications on all employers and employees.

The Victorian Chamber is concerned the Bill unnecessarily limits the flexibility of small businesses to operate their business in a way that works for them and their unique circumstances.

Provisions within the Bill look to impose an additional layer of obligations, with practical implications of what Provisions in the Bill mean remaining unclear to technical experts - leaving little chance for small businesses to be able to navigate successfully.

The Bill should not be passed until the technical implications of the Bill have been fully explored, and all parties: employers, employees, practitioners, lawyers, and more, have a clear understanding of how it will work in practice.

Key provisions within the Bill include:

• Expanding the options for multi-employer bargaining, providing employees and unions with greater powers to force employers to bargain for agreements that cover multiple employers
• Restricting the use of fixed-term contracts for more than two years (there are some limited exceptions to this)
• Broadening the capacity for employees to request flexible working arrangements to include situations of domestic violence and imposing more obligations around employers to reach agreement with employees, including proposing an alternative
• Prohibiting pay secrecy. It will be a workplace right for employees to ask other employees about their remuneration and conditions, who would be free to either disclose or not
• Expanding access to the small claims procedure in the FWC for recovering underpayments, lifting the cap on amounts awarded from $20,000 to $100,000
• Making it easier for the FWC to intervene and resolve “intractable” bargaining disputes
• Changes to simplify the Better-Off Overall Test (BOOT), ensuring realistic scenarios are considered rather than potentially unrealistic hypotheticals, and a test is applied to the agreement as a whole rather than line-by-line
• Addressing the lack of pay equity for female workers, requiring the FWC ensure its consideration of certain matters (especially decisions around wages) is free of assumptions based on gender, and include consideration of whether there has been historical gender-based undervaluation of the work
• Adding a prohibition on work-related sexual harassment to the Fair Work Act including vicarious liability for employers who do not take reasonable steps to prevent harassment, placing additional compliance obligations on employers.
• Prohibiting the advertisement of pay rates that contravene the Fair Work Act.
• Changing the rules for the termination and sunsetting of enterprise agreements. Pay deals struck in the WorkChoices era (or ‘zombie agreements’) will be cancelled after 12 months
• Abolishing the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC).

Victorian Chief Executive Paul Guerra said: “The Bill should be postponed until the Government has adequately addressed concerns, undertaken genuine consultation and made clear how the Bill impacts employers and employees.

“Proposed changes to multi-employer bargaining risks implicating small, medium and family businesses, who need support to recover from the pandemic and get through tough economic conditions, not more ambiguity and compliance.

“A one-size-fits all approach to wages undermines business flexibility and productivity.”

ACCI chief executive Andrew McKellar said: “This bill abandons enterprise bargaining, the key driver of productivity-based wages growth, in favour of compulsory multi-employer bargaining, reversing decades of tripartite consensus.”

“Enterprise bargaining is the cornerstone of our workplace relations system, and any significant change requires an extended period of robust and transparent public consultation.

“In a throwback to centralised wage fixing, the legislation will also see bargaining disputes quickly referred to compulsory arbitration. This gives the Fair Work Commission the power to dictate terms and conditions of employment for workplaces around the country, at the expense of employer and employee priorities with limited ability to appeal.

“The chamber welcomes changes to the “Better-Off Overall Test”, which will ensure that the BOOT is applied by the Fair Work Commission as it was initially intended – flexibly and as a global assessment, but remains concerned about the impact of substantial changes to multi-employer bargaining.”

Webinar

For businesses and individuals wanting to learn more and understand what is included in the Bill, the Victorian Chamber’s expert Workplace Relations Consultants held a webinar on Tuesday 22 November 2022. The webinar is now available at this link.