New workplace laws: Secure Jobs, Better Pay – what, when and how?

Jennifer Wyborn, Kate James
04 Nov 2022 Time to read: 3 MIN

Significant changes are likely to be made to the Bill over the coming weeks, so employers need not do anything just yet.

The Federal Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill has attracted a huge amount of attention and commentary with some describing it as “reverse Work Choices” and others predicting the death of enterprise level bargaining and fixed term contracts as well as massive economic uncertainty.

Although many employers are anxious about the impact of these changes on their businesses, there is no need to do anything just yet. There is a way to go before we know exactly what the changes to the law will be and what employers will be required to do.

Despite the Government’s stated aim to have the legislation passed by the end of the year,  that is looking less and less likely as Senators Pocock and Lambie have declared they don’t think that will give them enough time to consider the impact of the draft provisions on small business. At this stage this is what we do (and don’t) know.

The Bill has been introduced to Parliament – now what?

The Bill was introduced in Parliament on 27 October 2022, with Minister Tony Burke giving the second reading speech that day. The Bill is accompanied by an Explanatory Memorandum.

The Bill is still before the House of Representatives and has been referred to the Education and Employment Legislation Committee who are due to report back on 17 November 2022. Once that report has been returned, the House of Representatives will vote on the Bill and then the Bill will go before the Senate for a further a vote. We expect some changes to the Bill, particularly given the strong opposition to the multi-employer bargaining provisions.

In fact, the Government has already flagged that it will introduce a number of amendments to the Bill to address feedback from stakeholders to ensure:

  • a reasonable period of good-faith bargaining occurs before either party can resort to arbitration;
  • multi-employer bargaining is not extended to industries in which it is neither appropriate nor necessary—in particular, commercial construction;
  • businesses and workers who already successfully negotiate single-enterprise agreements can continue to do so; and
  • agreements cannot be put to a vote of employees without the agreement of employee organisations who are bargaining representatives.

Further changes may also arise following scrutiny by the Education and Employment Legislation Committee. The Committee will hold a hearing in relation to the Bill on 4 November 2022, with submissions set to close on 11 November 2022. The Committee will then have 6 days to deliver its report to Parliament on 17 November 2022. The hearings are an opportunity for key stakeholders to express concerns regarding the Bill and for the Committee to express its view on the Bill.

What reforms to the Secure Jobs, Better Pay Bill will key stakeholders be pushing for?

Business and industry stakeholders have indicated strong disagreement with the Bill, especially in relation to multi-employer bargaining.

The Australian Chamber of Commerce and Industry has endorsed changes to the "better of overall test" (BOOT) but has raised concerns about the Bill doesn't contain appropriate safeguards to ensure that businesses with limited similarities won't be compelled to bargain together. Similarly, AiGroup has called for amendments to:

  • address the potential for widespread strikes and other industrial action in support of multi-employer agreements;
  • prevent the expansion of multi-employer bargaining without "sufficient safeguards to ensure that it won't impact sectors or employers that are already capable of bargaining at the enterprise level"; and
  • ensure employers aren't exposed to litigation in the Fair Work Commission over rostering and working arrangements that should otherwise be resolved at the workplace level.

Meanwhile, the Greens have flagged support for a number of recommendations made by the Select Committee on Work and Care in its interim report. If these recommendations are incorporated into the Bill, they could have a significant impact on rights to request flexible working arrangements. In particular, the interim report recommended:

  • ensuring all employees are eligible to request flexible working arrangements;
  • allowing employers to refuse requests for flexible working requests only if it would cause "unjustifiable hardship". Currently, the law allows employers to refuse requests on "reasonable business grounds"; and
  • legislating a right for employees to disconnect.

Key takeaways on the future of the Secure Jobs, Better Pay

The Secure Jobs, Better Pay Bill proposes some of the most significant industrial relations reforms we have seen for some time. However, it is likely that significant changes are likely to be made to the Bill over the coming weeks, so employers need not do anything just yet. It is essential however that employers stay updated with the evolution of the Bill to ensure they are compliant with all elements that are passed into law.

If the Bill is passed before 1 December, it will likely come into effect immediately, though we think that is looking less likely or, if a 1 December date is achieved, a significantly slimmed down Bill will be proposed with the more contentious provisions removed.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.