The Act introduced changes to bargaining and enterprise agreements, disputes about flexible working arrangements and extensions of unpaid parental leave, and pay secrecy.

Bargaining changes

The changes to bargaining and industrial action relate to: multi-employer bargaining, protected action ballot orders and intractable bargaining declarations and determinations.

The three types of multi-employer bargaining and agreements are:

• Single interest employer agreements: allow two or more employers (that are certain franchisees or with common interests) to be covered by the same agreement.
• Supported bargaining agreements: replace the current low-paid bargaining arrangements and can only be made where a supported bargaining authorisation is in operation immediately before the agreement is made.
• Cooperative workplace agreements: can be made by employers who have agreed to bargain together where they are not included in a supported bargaining authorisation or single interest authorisation. Before approving a cooperative workplace agreement, the Fair Work Commission (FWC) must be satisfied that at least some of the employees are represented by a union.

The FWC will be able to make protected action ballot orders in relation to multi-enterprise agreements. The FWC will also approve eligible protected action ballot agents.

If the FWC makes a protected action ballot order, all bargaining representatives must attend a conference aimed at reaching an agreement on some or all the unresolved issues before any protected industrial action is taken.

From 6 June, serious breach declarations and bargaining related workplace determinations are replaced by intractable bargaining declarations and intractable bargaining workplace determinations.

A bargaining representative can apply for an intractable bargaining declaration if parties:

• have been bargaining for at least 9 months (the minimum bargaining period) and have reached an impasse
• have already tried to resolve the bargaining dispute including by making an application to the Commission (section 240); and
• want further assistance to resolve the dispute.

If an intractable bargaining declaration is made and the bargaining representatives are still unable to resolve the dispute, the FWC must make an intractable bargaining determination which establishes the terms and conditions of employment in place of an enterprise agreement.

Enterprise agreement changes

The changes to making enterprise agreements relate to: the genuine agreement requirements including the new Statement of Principles on Genuine Agreement and the Better Off Overall Test (BOOT).

From 6 June, the FWC must consider a Statement of Principles on Genuine Agreement when determining whether an enterprise agreement has been genuinely agreed to by the employees. These principles provide guidance to employers about what they must do to ensure employees have genuinely agreed to the agreement. A copy of the Statement can be accessed here.

Changes to the BOOT will allow the FWC to:

• amend an agreement after it’s lodged, if the FWC is of the view that it doesn’t pass the BOOT, or
• reconsider an agreement after it has been approved, if relevant circumstances were not properly considered or if circumstances have changed.

As part of the changes, the FWC will also be required to make a global assessment as to whether any ‘reasonably foreseeable’ employee would be better off under the enterprise agreement compared to the modern award.

Flexible work and unpaid parental leave disputes

From 6 June, there will be changes to how employers need to respond to requests by employees for flexible working arrangements and extensions of unpaid parental leave. Prior to these changes, the Fair Work Act 2009 (Cth) contained minimal guidance on how an employer should respond to a request for an extension of unpaid parental leave. Importantly, the FWC can now deal with disputes about both.

The Act introduces a new dispute resolution process in relation to requests for flexible working arrangements and extensions of unpaid parental leave. An employee may refer a dispute to the FWC where an employer has refused their request, or where the employer has failed to respond to the request within 21 days. However, both parties must discuss and attempt to resolve the dispute at a workplace level before the matter can be referred to the FWC.

From 6 June 2023, the right to request flexible working arrangements will also be available to pregnant employees and employees (or a member of their immediately family or household) who are experiencing family and domestic violence.

An employer may agree or disagree to the requests, within 21 days of the request. Employers have new obligations before they can refuse a request:

• the employer has discussed and genuinely tried to reach an agreement but has not been able to
• the employer must consider the consequences of refusal for the employee
• the refusal must be on reasonable business grounds.

The written response needs to:

• include details of the reasons for refusal, including the employer’s particular business grounds and how those grounds apply to the request
• state any alternative working arrangements the employer would be willing to make or state there are no alternative working arrangements
• provide information about the new dispute resolution process that is available (discussed below).

Pay secrecy

Finally, there are further changes regarding pay secrecy. From 7 December 2022, employees were given a new workplace right to share (or not share) information about their pay and employment terms and conditions. From 7 June 2023, pay secrecy terms inconsistent with this new workplace right cannot be included in employment contracts or other written agreements that were entered into on or after 7 December 2022. Where such terms are included, they will have no effect and cannot be enforced. Employers may also face penalties for including pay secrecy terms in new contracts.

If a contract was entered into before 7 December 2022 and contains pay secrecy terms, these remain valid until the contract is updated or varied. Once the contract is changed, the new workplace rights will apply to the employee.

How the Chamber can help

If you have any queries about the proposed changes, or to discuss any workplace matters, please contact our Workplace Relations Advice Line on (03) 8662 5222.

The Victorian Chamber also undertakes Enterprise Bargaining and Agreement Making training, which examines why you may want to consider a workplace agreement for your employees, including a step-by-step guide of what is required, how to respond to requests to bargain, and the benefits it may offer your business.

This program will increase your knowledge of:

• What you can achieve by putting an agreement in place
• Knowing what you must include in a workplace agreement, and the options you should consider
• Whether a workplace agreement is right for your business
• Being aware of the legal requirements that cover and regulate agreement making
• Learning the strategies, processes and steps involved in negotiating with your employees, your union or multiple unions
• Drafting, voting on and lodging your agreement.