Jobs & Skills Summit 2022 – a recap

AMANDA LYRAS, STEPHEN SILVAPULLE, EMILY BROADBENT, SOPHIE ORTON, ISABELLA ARMAO AND ANAND SHAH
06 Sep 2022 Time to read: 3 MIN

Employers with enterprise agreements to be renegotiated in 2022 and 2023 will likely be negotiating in a changed environment.

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.

Key takeaways

Employers with enterprise agreements to be renegotiated in 2022 and 2023 will likely be negotiating in a changed environment.

It’s never too early to begin preparing with your human resources and industrial relations teams to:

  • Gather your documents – review your industrial instruments and policies and understand how they apply.
  • Consider when your enterprise agreement is expiring and whether the business intends to negotiate a new enterprise agreement. If your agreement predates 2010 it may be considered a zombie agreement, the terms of which may not be sustainable or advisable to retain in the next iteration of the agreement.
  • Be aware of what is important to your workforce and what other employers are offering (eg. leave entitlements, benefits and minimum wage increases).
  • Develop a communication strategy – consider how to communicate with your employees about changes to the legislation, policy documents or the commencement of negotiations for an enterprise agreement.
  • Get advice to plan a strategic approach to negotiations – including the impact of the legal changes that are coming.

Be prepared for union involvement and more confident bargaining representatives in any upcoming negotiations (even if you currently do not have a highly unionised workforce).

GET IN TOUCH

Stephen Silvapulle

Melbourne
Special Counsel

Emily Broadbent

Brisbane
Senior Associate

Sophie Orton

Sydney
Senior Associate
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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.