With the doors now closed on the Jobs & Skills Summit 2022, the Albanese Government has pledged legislative reforms to enterprise bargaining including multi-employer bargaining, modification of the “Better off Overall Test” (the BOOT) and access to flexible work arrangements. Changes will come quickly, with a commitment to immediately commence the necessary policy reviews and have legislation before the Parliament prior to Christmas.
From a business perspective, the detail of proposed changes will be crucial to understanding the new landscape of Australia’s industrial relations.
Enterprise Agreements – multi-employer bargaining
The Australian Council of Trade Unions (ACTU) and the Council of Small Business Organisations Australia (COSBOA) joined forces at the Summit to support the application of multi-employer bargaining in a significant proposed reform to enterprise bargaining. This approach typically applies across sectors with many employers, such as childcare – and indeed, the ACTU has specifically focussed on service and care industries being targeted to benefit from this reform.
Workplace Relations Minister Tony Burke has announced the Government is committed to implementing this change, with multi-employer bargaining allowing two or more employers to bargain together. The approach would extend capacity for union-led bargaining across sectors where we have otherwise seen separate enterprise agreements for each employer. Employer advocacy groups are concerned that this may allow for co-ordinated industrial action across different businesses.
COSBOA had outlined support for an opt-in approach for small businesses to engage in multi-employer bargaining, although businesses should be aware that the Government has not confined the prospect of multi-employer bargaining to small business alone. A consultation meeting is scheduled for Tuesday 6 September 2022, with unions and industry leaders to be targeted for further discussions with policy makers.
Industry positions on enterprise bargaining
Industry groups at the Summit have been vocal in a very cautious response to flagged reforms, with the details of these reforms still unknown.
There is general agreement that the current enterprise bargaining process is inadequate but there is no consensus on the specific features of the current system that should be targeted for reform. The Australian Industry Group, the Australian Chamber of Commerce and Industry and the Business Council of Australia have each indicated more clarity is needed around the legislative approach before the widespread nature of proposed changes is revealed, including in respect of multi-employer bargaining.
It is clear that any changes to bargaining arrangements will have significant ramifications. Not least of which, the Government’s support for multi-employer bargaining raises the potential for industrial disputation against whole sectors concurrently and the focus on industry (rather than individual enterprise) may affect the capacity of some businesses to meaningfully participate in negotiations.
We are keeping a close watch on the continuing legislative and policy developments, with more news expected in the coming weeks.
New BOOT
The Government has announced that it will look for changes to soften the BOOT and enable the Fair Work Commission (FWC) to interpret the BOOT in a more flexible manner when approving enterprise agreements.
This possible change will benefit employers who find the current test is too legalistic and complex to prove when negotiating enterprise agreements. However, no guidance has been provided about how this will be achieved.
Flexible work arrangements
Better access to flexible work arrangements and unpaid parental leave are flagged changes to the Fair Work Act 2009, with further reforms also including amendments to protections for employees against adverse action, harassment and discrimination.
Increasing workforce participation is a key feature coming out of the Summit. We are expecting to see directed efforts in the upcoming policy changes to encourage women to re-enter the workforce, as well as increased support for First Nations people and people living with disabilities. There are also flagged changes to support skilled migration and funding for additional TAFE training support.
What’s next
An Outcomes Paper has been released from the Summit, with the ideas and policies raised to be consolidated into a White Paper on Employment.
We are yet to hear when the White Paper will be released but we expect continuous rolling out of further information on the Government’s policy changes and legislative reforms.
We have been promised swift policy review of the Fair Work Act, likely by the years’ end including specific changes to:
- Improve access to enterprise bargaining, particularly for under-represented groups such as small businesses, women, care and community services sectors, and First Nations people;
- Ensure unnecessary limitations on access to single and multi-employer agreements are removed to create more flexibility for those wanting to be covered by them;
- Continue to foster enterprise bargaining negotiations at the enterprise-level;
- Improve the bargaining process, including by allowing the FWC to be more proactively involved during bargaining, providing “proper support” to employer bargaining representatives and union delegates, and simplifying the BOOT;
- Ensure the process for agreement terminations is fit for purpose and fair, and sunsets so-called zombie agreements;
- Improve access to flexible working arrangements and unpaid parental leave so families can share work and caring responsibilities; and
- Provide stronger protections for workers against adverse action, discrimination, and harassment.