FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022

2022 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Employment and Workplace Relations, the Hon Tony Burke MP)

CONTENTS OUTLINE ............................................................................................................................................................. iii FINANCIAL IMPACT STATEMENT ............................................................................................................. iii REGULATION IMPACT STATEMENT ......................................................................................................... iv STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ................................................................. v NOTES ON CLAUSES ........................................................................................................................................ 1 PART 1--ABOLITION OF THE REGISTERED ORGANISATIONS COMMISSION ................................. 5 PART 2--ADDITIONAL REGISTERED ORGANISATIONS ENFORCEMENT OPTIONS ..................... 23 PART 3--ABOLITION OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION .. 27 PART 4--OBJECTS OF THE FAIR WORK ACT ........................................................................................ 65 PART 5--EQUAL REMUNERATION .......................................................................................................... 68 PART 6--EXPERT PANELS ......................................................................................................................... 71 PART 7 --PROHIBITING PAY SECRECY .................................................................................................. 78 PART 8--PROHIBITING SEXUAL HARASSMENT IN CONNECTION WITH WORK .......................... 80 PART 9--ANTI-DISCRIMINATION AND SPECIAL MEASURES ........................................................... 97 PART 10--FIXED TERM CONTRACTS .................................................................................................... 101 PART 11--FLEXIBLE WORK .................................................................................................................... 108 PART 12--TERMINATION OF ENTERPRISE AGREEMENTS AFTER NOMINAL EXPIRY DATE .. 116 PART 13--SUNSETTING OF "ZOMBIE" AGREEMENTS ETC. ............................................................. 121 PART 14--ENTERPRISE AGREEMENT APPROVAL ............................................................................. 125 PART 15--INITIATING BARGAINING .................................................................................................... 133 PART 16--BETTER OFF OVERALL TEST ............................................................................................... 136 PART 17--DEALING WITH ERRORS IN ENTERPRISE AGREEMENTS ............................................. 141 PART 18--BARGAINING DISPUTES ....................................................................................................... 143 PART 19--INDUSTRIAL ACTION ............................................................................................................ 150 PART 20--SUPPORTED BARGAINING ................................................................................................... 159 PART 21--SINGLE INTEREST EMPLOYER AUTHORISATIONS ........................................................ 171 PART 22--VARYING ENTERPRISE AGREEMENTS TO REMOVE EMPLOYERS AND THEIR EMPLOYEES ................................................................................................................................................ 187 PART 23--COOPERATIVE WORKPLACES ............................................................................................. 189 PART 24--ENHANCING THE SMALL CLAIMS PROCESSES............................................................... 193 PART 25--PROHIBITING EMPLOYMENT ADVERTISEMENTS WITH PAY RATE THAT WOULD CONTRAVENE THE ACT ........................................................................................................................... 195 PART 26--APPLICATION, SAVING, TRANSITIONAL AND MISCELLANEOUS CONSEQUENTIAL PROVISIONS ................................................................................................................................................ 198 PART 27--AMENDMENT OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 ....................................................................................................................................................................... 209

Outline and Financial Impact Statement FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022 OUTLINE The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill) would amend the Fair Work Act 2009 (the FW Act) and related legislation to improve the workplace relations framework by: • Restoring fairness and integrity to workplace relations institutions by abolishing the Australian Building and Construction Commission so that the Fair Work Ombudsman is the workplace relations regulator for the building and construction industry and abolishing the Registered Organisations Commission and transferring its functions to the General Manager of the Fair Work Commission. • Boosting bargaining by removing unnecessary complexity, ensuring bargaining is genuine, fair and conducted in good faith, and making the better off overall test simple, flexible and fair. • Encouraging bargaining for single enterprise agreements by making it easier to bargain and simplifying approval requirements. • Remove unnecessary limitations on access to the low-paid bargaining stream (and rename it the supported bargaining stream) and the single-interest employer authorisation stream; and provide enhanced access to Fair Work Commission support for employees and their employers who require assistance to bargain. • Restoring balance and fairness to the system by ensuring the process for agreement terminations is fit for purpose and fair, and sunsetting 'zombie agreements'. • Improving job security and gender equity by including both concepts in the objects of the FW Act, limiting the use of fixed term contracts, introducing a statutory equal remuneration principle and prohibiting pay secrecy clauses. • Improving workplace conditions and protections by providing stronger access to flexible working arrangements, stronger protections for workers, including victim survivors of sexual harassment, and enhancing small claims procedures to enable unpaid entitlement recovery. • Updating the workers' compensation presumptive liability provisions for firefighters in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). FINANCIAL IMPACT STATEMENT The Government has committed $111.6 million over 4 years to support the implementation of measures in the Bill. Detail is contained in the 2022-23 Budget. House of Representatives iii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Regulation Impact Statement REGULATION IMPACT STATEMENT The enterprise bargaining outcomes regulation impact statement is attached at the end of this explanatory memorandum. Fair Work Legislation iv House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill 2. The Bill would amend the Fair Work Act 2009 (the FW Act) and related legislation to get wages moving, boost job security, tackle gender inequity and restore fairness and integrity to Fair Work institutions. Abolition of the Registered Organisations Commission 3. Parts 1 and 2 would amend the Fair Work (Registered Organisations) Act 2009 (RO Act) to: • repeal the provisions of the RO Act that establish the Registered Organisations Commission (ROC), including the position of the Registered Organisations Commissioner (RO Commissioner); • replace remaining references to the Commissioner with references to the General Manager of the Fair Work Commission (General Manager) or the Fair Work Commission (FWC) as the case may be; • provide for appropriate transitional arrangements for the transfer of functions; and • trigger standard provisions for the infringement notice and enforceable undertakings schemes under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). Abolition of the Australian Building and Construction Commission 4. Part 3 would abolish the Australian Building and Construction Commission (ABCC) and repeal the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016). This would ensure that workers in the building and construction industry have the same rights as other workers in relation to enforcement of the FW Act. 5. Specifically, the Bill would: • repeal the parts of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) relating to the ABCC and Building Code (including repealing the position of the Australian Building and Construction Commissioner and Deputy Commissioners); House of Representatives v Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights • remove provisions providing higher penalties for building industry participants and broader circumstances under which penalties may apply; • provide transitional arrangements for the abolition of the ABCC, including to transition pending court proceedings to the Fair Work Ombudsman (FWO); • make consequential amendments required as result of the amendments to the BCIIP Act; and • retain provisions relating to the Work Health and Safety Accreditation Scheme (Accreditation Scheme) and Office of the Federal Safety Commissioner (FSC) in a renamed Act. Objects of the Fair Work Act 6. Part 4 would amend section 3 of Division 2, Part 1-1 of the FW Act to introduce the promotion of job security and gender equity into the object of the FW Act. The FWC must take into account the object of the FW Act when performing functions or exercising its powers under the FW Act. 7. In addition, Part 4 would amend section 134 of the FW Act to include the promotion of job security and gender equity in the modern awards objective. It would also amend section 284 to include the promotion of gender equity in the minimum wages objective. Equal remuneration 8. Part 5 would amend section 157 and Part 2-7 of the FW Act to guide the way the FWC considers equal remuneration and work value cases. The amendments to section 157 would require that the FWC's consideration of work value reasons be free of assumptions based on gender, and include consideration of whether there has been historical gender-based undervaluation of the work under consideration. 9. The amendments to Part 2-7 of the FW Act would provide examples of matters the Commission may take into account when deciding whether there is equal remuneration for work of equal or comparable value, and clarify that evidence of a 'male comparator' is not required for the Commission to grant an equal remuneration order (ERO). The amendments would also allow the Commission to make an ERO on its own initiative as well as on application, and would confirm that the Commission is not required to find discrimination on the basis of gender in order to grant an ERO. Expert panels 10. Part 6 would insert new provisions at Part 5-1 of the FW Act establishing a Pay Equity Expert Panel and a Care and Community Sector Expert Panel within the FWC to determine equal remuneration cases and certain award cases. The amendments would allow for the appointment of members with expertise in gender pay equity, anti- discrimination, and the Care and Community Sector. Fair Work Legislation vi House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Prohibiting pay secrecy 11. Part 7 would insert new provisions at Part 2-9 of the FW Act giving employees a positive right to disclose (or not disclose) information about their own remuneration and any related terms and conditions of their employment to any other person, as well as to ask other employees (whether or not they work for the same employer) about their remuneration and other related terms and conditions of their employment. It would also provide that a term of a fair work instrument or contract of employment would have no effect to the extent that it would be inconsistent with these positive rights and expressly prohibit employers from including pay secrecy terms in a contract of employment. Prohibiting sexual harassment in connection with work 12. Part 8 would insert a new prohibition on sexual harassment into the FW Act to implement recommendation 28 of the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work Report). The prohibition would apply to workers, prospective workers and persons conducting businesses or undertakings. Principals may also be vicariously liable for acts of their employees or agents. 13. The Part would also create a new dispute resolution function for the FWC, modelled on the existing dispute resolution mechanism for general protections dismissal disputes, and would enable people who experience sexual harassment in connection with work to initiate civil proceedings if the FWC is unable to resolve the dispute. 14. To avoid duplication, the Part would merge the existing stop sexual harassment order jurisdiction into new Part 3-5A of the FW Act to ensure all provisions dealing with sexual harassment are located together and streamline processes for applicants. Anti-discrimination and special measures 15. Part 9 would strengthen the anti-discrimination framework in the FW Act by adding three further protected attributes--breastfeeding, gender identity and intersex status--to the existing provisions that provide protections against discrimination. This would bring the FW Act into alignment with other Commonwealth anti-discrimination legislation, such as the Sex Discrimination Act 1984 (SD Act). This Part would also insert new Part 6-4D into the FW Act which would outline the constitutional bases for amendments made by this Part of the Bill. 16. Part 9 would amend the Act to confirm that 'special measures to achieve equality' are matters pertaining to the employment relationship and therefore matters about which an enterprise agreement may be made. This Part would also clarify that 'special measures to achieve equality' are not discriminatory terms and therefore not unlawful terms in an enterprise agreement. House of Representatives vii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Fixed term contracts 17. Part 10 would insert new Division 5 to Part 2-9 to prohibit an employer from engaging an employee on a fixed term contract with a period of two or more years (including extensions) or on a contract which may be extended more than once. This provision would be a civil remedy provision and employers would be prohibited from engaging in avoidant behaviour. 18. A number of exceptions to the amendments are set out at proposed section 333F. The FWC would be empowered to resolve disputes regarding an employee's status as a fixed term employee, including by consent arbitration. Employees would also be able to access the small claims jurisdiction in eligible courts to enforce the legislative provisions. Flexible work 19. Part 11 would amend Division 4 of Part 2-2 of the FW Act to expand the circumstances in which an employee may request flexible work arrangements, to include situations where an employee, or a member of their immediate family or household, experiences family and domestic violence, as defined in section 106B(2) of the FW Act. 20. The procedure for dealing with requests for flexible work would also be amended, including by expanding the employer's obligations to discuss a request for a flexible work arrangement with the employee, provide reasons for any decision to refuse the request, and if the request is refused inform the employee of any changes in working arrangements the employer is willing to make that would accommodate the employee's circumstances. 21. Part 11 would also empower the FWC to resolve disputes regarding flexible work arrangements, including by mandatory arbitration where the employer refuses the employee's request or does not respond to the employee's request within 21 days. Contraventions of the flexible work provisions in Division 4 of Part 2-2 would be captured by the civil remedy provision in section 44 of the FW Act. Termination of enterprise agreements after nominal expiry date 22. Part 12 would amend the FW Act to clarify that the FWC can only terminate an agreement that has nominally expired on the unilateral application of a party in limited circumstances. Sunsetting of 'zombie agreements' 23. Part 13 would amend the FW Transitional Act to provide for the sunsetting of all remaining agreement based transitional instruments, Division 2B State employment agreements and enterprise agreements made during the 'bridging period' for the FW Act. Fair Work Legislation viii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Enterprise agreement approval 24. Part 14 would simplify requirements that need to be met for an enterprise agreement to be approved by the FWC, which are often regarded as overly prescriptive and complex. 25. Various steps that an employer must currently take within strict timeframes would be removed (for example, the requirement to take all reasonable steps to provide employees with access to the agreement during a 7 day 'access' period ending immediately before the start of the voting process). 26. The requirements to provide a notice of employee representational rights (NERR) and to wait until at least 21 days after the last notice is given before requesting employees to vote would no longer apply to bargaining for a proposed single interest employer agreement, supported bargaining agreement or cooperative workplaces agreement but would be retained in the case of a proposed single enterprise agreement (where no single interest employer authorisation is in operation). 27. Where pre-approval requirements are removed, they would be replaced with a broad requirement for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. 28. The intention is to simplify the pre-approval requirements, while retaining sufficient safeguards for employees. Initiating bargaining 29. Part 15 would amend Division 3 of Part 2-4 of the FW Act in relation to initiating bargaining. The proposed amendments would simplify the process for initiating bargaining where the proposed qualifying single-enterprise agreement would replace an existing agreement that has a nominal expiry date within the past 5 years and that has a scope substantially similar to the proposed agreement. Where the qualifying conditions are met, the amendments would enable an employee, via a bargaining representative, to initiate bargaining for an agreement simply by making a written request to the employer. Better off overall test 30. Part 16 would amend the Better Off Overall Test (BOOT) to make it fit for purpose: simple, flexible, and fair. Dealing with errors in enterprise agreements 31. Part 17 would remove unnecessary complexity in agreement-making by empowering the FWC to vary enterprise agreements to correct or amend obvious errors, defects or irregularities. It would also enable the FWC to validate a decision to approve an enterprise agreement or variation, in circumstances where the wrong version of the document was inadvertently submitted to the FWC for approval. House of Representatives ix Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Bargaining disputes 32. Part 18 would increase scope for the FWC to provide effective assistance to the parties to resolve intractable bargaining disputes. It would repeal the unused serious breach declaration provisions that have been ineffective in assisting bargaining parties to reach agreement and introduce a new intractable bargaining declaration scheme. Industrial action 33. The Bill would promote efficiencies through the establishment of a panel of ballot providers who are 'pre-approved' to conduct Protected Action Ballots (PAB). 34. The Bill would seek to de-escalate disputes before industrial action is taken and after industrial action has been authorised. The Bill would empower the FWC to require bargaining representatives to attend a conference during the PAB period and enable the FWC to conduct the conference within a 14-day period before voting closes on the PAB. 35. The Bill would reduce the administrative burden on the FWC and employees' bargaining representatives when authorisation for industrial action is being sought by extending the period in which industrial action can commence without the need for an extension. The longer period in which to commence industrial action would remove the urgency to commence industrial action. 36. The Bill would include a new notice requirement before commencing employee industrial action for two types of multi-enterprise bargaining. Bargaining representatives would need to provide a minimum of 120 hours' notice. Supported bargaining 37. Part 20 would reform the low-paid bargaining provisions in Division 9 of Part 2-4 of the FW Act and create the supported bargaining stream. The supported bargaining stream is intended to assist those employees and employers who may have difficulty bargaining at the single-enterprise level. For example, those in low-paid industries such as aged care, disability care, and early childhood education and care who may lack the necessary skills, resources and power to bargain effectively. The supported bargaining stream will also assist employees and employers who may face barriers to bargaining, such as employees with a disability and First Nations employees. 38. The provisions would amend the existing low-paid bargaining process. When an application for a supported bargaining authorisation is made, the FWC must consider whether it is appropriate for the parties to bargain together. The FWC would consider the prevailing pay and conditions in the relevant industry, whether employers have clearly identifiable common interests, and whether the number of bargaining representatives would be consistent with a manageable collective bargaining process. The proposed supported bargaining stream is intended to be easier to access than the existing low-paid bargaining stream. Fair Work Legislation x House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 39. If a supported bargaining authorisation is in operation in relation to a proposed multi- enterprise agreement, the FWC has additional powers to assist the parties in coming to an agreement. This includes convening conferences with a third party who has control over the terms and conditions that can be offered under an agreement. 40. Once an employer is specified in a supported bargaining authorisation, they cannot bargain for any other agreement in relation to those employees. An employer can apply to the FWC to be added to, or removed from, a supported bargaining authorisation. 41. When a supported bargaining agreement is made and approved by the FWC, the agreement may then be varied to cover additional employers and their employees. A variation may be made jointly by the employers and their employees and approved by the FWC. Alternatively, an employee organisation may apply to the FWC for variation of a supported bargaining agreement to cover additional employers and their employees, if a majority of those employees want to be covered by the agreement. Single interest employer authorisations and varying agreements to remove employers and their employees 42. Parts 21 and 22 would amend the FW Act to remove unnecessary limitations on access to single interest employer agreements. It would also enable these agreements to be varied to remove an employer and affected employees from coverage, by agreement. 43. Part 21 would support employers with clearly identifiable common interests to bargain together under a single interest employer authorisation in certain circumstances. Employee bargaining representatives would also be able to apply for a single interest employer authorisation where there is majority support of the relevant employees. The amendments are intended to make it easier to obtain a single-interest employer authorisation. Relevant employers and employee bargaining representatives could apply to add or remove an employer from an authorisation, subject to meeting specified criteria (including a majority vote of employees or majority support of employees as applicable). 44. New employers or employee organisations covered by an existing single interest employer agreement would have scope to apply to the FWC to extend coverage of that agreement to the new employer and its employees, subject to meeting the specified requirements (including a majority vote of employees or majority support of employees as applicable). Cooperative workplaces 45. The Bill would amend existing provisions relating to making multi-enterprise agreements to be known as cooperative workplace agreements. These agreements would replace the process of bargaining for and making multi-enterprise agreements where a supported bargaining authorisation is not in operation. 46. The proposed framework for cooperative workplace agreements would have some differences to the existing multi-enterprise provisions, including that a person may be House of Representatives xi Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights excluded in relation to an agreement. A new legislative scheme would also be introduced to allow employers and employees not covered by a particular cooperative workplace agreement to become covered under an existing agreement upon successful application to the FWC. Enhancing the small claims process 47. Part 24 would increase the monetary cap on the amounts that can be awarded in small claims proceedings under the FW Act from $20,000 to $100,000. This Part would also enable the court in a small claims proceeding to award to a successful claimant any filing fees they paid to the court as costs, from the other party. Prohibiting employment advertisements with pay rate that would contravene the Act 48. Part 25 would insert a new provision prohibiting national system employers from advertising employment at a rate of pay that would contravene the FW Act or a fair work instrument. It would require advertisements of piecework to include any periodic rate of pay to which the pieceworker would be entitled. Employers would not contravene the provision if they had a reasonable excuse for not complying. Workers' compensation presumptions for firefighters 49. Part 27 would amend existing presumptive liability provisions in subsection 7(8) of the SRC Act to reflect the outcomes of the 'Review of the Firefighter Provisions of the Safety, Rehabilitation and Compensation Act 1988' undertaken by Dr Tim Driscoll, Professor of Epidemiology and Occupational Medicine, in 2018, such that: • the qualifying period for oesophageal cancer will be reduced from 25 years to 15 years; • the current list of prescribed diseases at subsection 7(8) will be expanded to include malignant mesothelioma with a qualifying period of 15 years; and • the firefighter provisions of the SRC Act are to be extended to persons taken to be employed by the Australian Capital Territory by operation of a declaration made under subsection 5(15) of the SRC Act (volunteer firefighters). 50. This Part would also amend section 5 of the SRC Act to update the references to the emergency services legislation of the Australian Capital Territory included in the SRC Act. Human rights implications 51. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. The Bill engages the following rights: Fair Work Legislation xii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights • the right to the enjoyment of just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic Social and Cultural Rights (ICESCR); • the right to social security, including social insurance under Article 9 of the ICESCR; • the right to protection and assistance for families under Article 10(2) of the ICESCR; • the right to the highest attainable standard of physical and mental health under Article 12 of the ICESCR; • the right to an effective remedy under Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and right to a fair hearing under Article 14(1) of the ICCPR; • the right to presumption of innocence and other guarantees in relation to criminal charges under Article 14 and Article 15 of the ICCPR; • the right to privacy and reputation under Article 17 of the ICCPR; • the right to freedom of expression under Article 19 of the ICCPR; • the right to peaceful assembly under Article 21 of the ICCPR; • the right to freedom of association, including the right to form and join trade unions under Article 22 of the ICCPR and Article 8 of the ICESCR; • the right to equality and non-discrimination under Article 2 of the ICCPR and Article 2 of the ICESCR and Article 26 of the ICCPR; • the right of women not to be discriminated against based on gender under Articles 2, 3 and 11 of the CEDAW and Article 26 of the ICCPR; • the rights of parents and children in Articles 3 and 18 of the Convention on the Rights of the Child (CRC) and Article 5 of the CEDAW; and • the rights of people with disability in Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD). 52. The content of the right to work, the right to just and favourable conditions of work and the right to freedom of association in the ICESCR and ICCPR can be informed by specific obligations in treaties of the International Labour Organisation (ILO), such as the Right to Organise and Collective Bargaining Convention 1949 (No. 98) (ILO Convention 98), that protects the right of employees to collectively bargain for terms and conditions of employment, and the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87), which provides employer and employee organisations with protection for their organisational autonomy. House of Representatives xiii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Rights to work and rights in work 53. Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work. 54. The United Nations Committee on Economic Social and Cultural Rights in General Comment 18 has also stated that the right to work includes: the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion. 55. There can also be no discrimination in access to and maintenance of employment on the grounds enumerated in Article 2(2) of the ICESCR. 56. Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions. Objects of the Fair Work Act 57. The Bill would amend Part 1-1 of the FW Act to include job security and gender equity in the object of the FW Act. The FWC would be required to take the objects into account when performing functions or exercising its powers under the FW Act (existing section 578(a)). 58. In addition, Part 4 would amend the modern awards objective to include a new requirement for the FWC to consider job security and gender equity when exercising its powers under Part 2-2 - Modern Awards and Part 2-6 - Minimum Wages (so far as those powers relate to modern awards minimum wages). Item 349 of Part 4 would further amend the minimum wage objective set out in subsection 284(1) to require the FWC to consider gender equity when exercising its powers in relation to minimum wages. 59. By requiring the FWC to consider the objective of secure work in exercising its powers under the FW Act, the amendments would promote stable and ongoing employment, protecting the right to work in Article 6 of the ICESCR. The Bill would also promote just conditions of work for all employees, as set out in Article 7 of the ICESCR, by requiring the FWC to consider gender equity in exercising its powers in setting the conditions of work under modern awards. In particular, the objective of gender equity would further Article 7(i) of the ICESCR, which requires fair wages and equal remuneration for work of equal value without distinction of any kind, including gender. Fair Work Legislation xiv House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Equal remuneration 60. Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions. It also specifically recognises the right to fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work. The ILO's Equal Remuneration Convention 1950 (No. 100) also recognises the principle of equal remuneration. 61. The amendments to section 157 would promote the right to just and favourable conditions of work by clarifying that the Commission cannot take into account gender- based assumptions, and must consider whether there has been historical gender-based undervaluation of the work while assessing work value in varying minimum wages set out in modern awards. 62. The amendments to Part 2-7 would promote the right to just and favourable conditions of work by removing some of the evidentiary burdens involved in establishing a case for an ERO. Successful pay equity claims would help improve conditions of work for women in affected sectors. Expert panels 63. The new provisions at Part 5-1 would promote the right to just and favourable conditions of work by ensuring that matters relating to EROs, award cases in the Care and Community Sector and work value cases that are based on substantive gender pay equity matters are presided over by an Expert Panel that includes a majority of FWC members with specialist skills and knowledge. Prohibiting pay secrecy 64. Establishing a right to disclose remuneration, invalidating contract terms which are inconsistent with such rights, and expressly prohibiting pay secrecy clauses would also positively engage this right by supporting all employees to confirm whether they are being remunerated fairly and comparably. Prohibiting sexual harassment in connection with work 65. The Bill would positively engage the right to work and rights in work by inserting a broad protection against sexual harassment for all workers, prospective workers and persons conducting businesses or undertakings in Australia. The definition of a 'worker' would capture the full range of people engaged in, or seeking, work, regardless of a person's jurisdiction, occupation or workplace. 66. This would promote safer and healthier workplaces and discourage behaviours that can cause both physical and psychological harm. The associated dispute resolution mechanism for the FWC would also ensure that individuals are supported to address House of Representatives xv Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights sexual harassment where it occurs in connection with work through quick and inexpensive processes. 67. The Bill would further support rights in work by extending access to stop sexual harassment orders to a broader range of workers and enabling prospective workers to seek such orders. This would give more people access to a quick remedy to stop sexual harassment connected with work and prevent further harm. 68. In merging the existing stop sexual harassment order jurisdiction into Part 3-5A along with the new prohibition on sexual harassment, the Bill would also carry over existing limitations in relation to the Defence Force, Australia's security agencies and the Australian Federal Police. This means: • Stop sexual harassment orders would continue to be unavailable to certain members of the Defence Force. • The FWC would retain the power to dismiss a stop sexual harassment order application if it considered that the application might involve matters relating to Australia's defence, national security, or existing or future covert or international operations of the AFP. • Stop sexual harassment orders could not require or permit conduct that would be prejudicial to Australia's defence, national security, or existing or future covert or international operations of the AFP. • The Chief of the Defence Force, Director-General of Security or the Director- General of the Australian Secret Intelligence Service would retain the power to make declarations altering the application of the stop sexual harassment order provisions, with approval of the Minister for Employment and Workplace Relations (Minister). 69. These limitations align with the existing framework for exemptions under the Work Health and Safety Act 2011 (WHS Act), which reflects the sensitive nature of the work that is undertaken by Australia's defence and security personnel. The requirement that declarations issued by the Chief of Defence Force, Director-General of Security and the Director-General of ASIS be in the form of legislative instruments would remain, ensuring any such declarations would be subject to scrutiny by both Houses of Parliament. Approval of the Minister would also continue to be a requirement for the making of a declaration and provide further scrutiny. 70. To the extent that these provisions limit access to stop sexual harassment orders under new Part 3-5A, they are: • carrying over limitations that already exist in the FW Act; • necessary to ensure that the stop sexual harassment order provisions do not interfere with Australia's defence, national security or covert or international law enforcement activity; and Fair Work Legislation xvi House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights • achieve that legitimate objective in a proportionate and reasonable way. 71. These limitations only apply in relation to stop sexual harassment orders and all workers, prospective workers and persons conducting businesses or undertakings, including those in the Defence Force and security personnel, would have access to other remedies for sexual harassment in connection with work under the FW Act. Other military sanctions may also apply that could have a similar effect as a stop sexual harassment order. 72. A regulation-making power has also been included which would enable the FW Regulations to specify circumstances in which defence members may make stop sexual harassment order applications. A regulation made under this new power could only be used to narrow the limitation on defence members. Any regulations would be subject to scrutiny by both Houses of Parliament and subject to disallowance. Anti-discrimination and special measures 73. This Part would promote the right to the enjoyment of just and favourable conditions of work by extending the protections from discrimination in the FW Act to include the attributes of breastfeeding, gender identity and intersex status. This would ensure that an employee cannot be terminated, and adverse action cannot be taken against an employee or prospective employee, because of these three attributes. Modern awards and enterprise agreements also could not discriminate based on these attributes. 74. The amendments to paragraph 578(c) would also promote this right by requiring the FWC to take into account the need to prevent and eliminate discrimination on the basis of these three further attributes while performing its functions or exercising its powers. 75. Part 9 would also promote the right to just and favourable conditions of work by ensuring that special measures to achieve equality are matters pertaining to the employment relationship, and therefore a permitted matter about which enterprise agreements may be made. 76. This change would permit employers and employees to collectively negotiate terms for inclusion in enterprise agreements that have the primary objective of accelerating and achieving equal opportunity, representation and participation of employees with particular attributes across workforces. The inclusion of such terms in enterprise agreements would aim to create a more inclusive and open labour market. This Part therefore promotes the right to just and favourable conditions of work. Fixed term contracts 77. The Bill would prohibit an employer from engaging an employee on a fixed term contract with a period of two or more years (including extensions) or which may be extended more than once. A number of exceptions to this rule are set out at proposed section 333F, however employers would bear the evidentiary burden to prove that an exception applies. House of Representatives xvii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 78. Where a fixed term employment contract contravenes these provisions, the employee would not be deprived of their employment. Rather, the employment contract would continue as if the fixed termination date has no effect, and the employee would be entitled to notice of termination and redundancy pay under the FW Act. 79. These amendments would promote the right to work in Article 6 of the ICESCR by ensuring that workers on fixed term contracts which breach the prohibition have access to secure and permanent employment, unless an appropriate exception applies. The measure would also facilitate just terms and conditions of employment for fixed term employees under Article 7 of the ICESCR, including protecting employees' rights not to be unfairly deprived of work, by ensuring fixed term contracts are only used where appropriate and employees are otherwise afforded due process where their employment is terminated. Flexible work 80. The Bill would support employees experiencing family and domestic violence to access flexible work arrangements. In doing so, it would promote Articles 6 and 7 of the ICESCR by supporting employees who experience family and domestic violence to engage in work on terms and conditions that justly recognise their circumstances. 81. The amendments would also promote favourable conditions of work by enhancing the obligations of employers to consider requests for flexible work arrangements, provide reasons for any decision to refuse a request for flexible work and inform the employee of changes to working arrangements that the employer is willing to make to accommodate the employee's circumstances. By strengthening the processes surrounding requests for flexible working arrangements, the Bill would support employees to seek just and favourable conditions of work pursuant to Articles 6 and 7 of the ICESCR. Termination of enterprise agreements after nominal expiry date 82. Part 12 engages rights to work and rights in work because enterprise agreements set the terms and conditions of employment for covered employees, and the Part would replace and supplement the existing rules for the termination of enterprise agreements that have nominally expired. This Part engages the right positively, as it would effectively further restrict the circumstances when enterprise agreements may be terminated on a unilateral application to the FWC, to ensure fairer outcomes for affected employees. 83. The amendments would (among other things) stop the practice of employers applying unilaterally to the FWC to terminate nominally expired enterprise agreements, where termination would result in reducing employees' entitlements. That includes situations where the threat of termination may disrupt bargaining for a new enterprise agreement. 84. Existing arrangements for the termination of enterprise agreements on the ground of 'significant threat to business viability' would be retained (albeit in a different form), Fair Work Legislation xviii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights but safeguards added to preserve employees' termination entitlements that are more favourable than those in the award. 85. For these reasons, this Part engages these rights positively. Sunsetting of "zombie" agreements etc. 86. Part 13 would promote the right to just and favourable conditions of work by sunsetting all remaining agreement-based transitional instruments, Division 2B State employment agreements and enterprise agreements made during the 'bridging period' as defined. 87. These remaining transitional instruments set pay and conditions for covered employees, and many provide take-home pay and conditions inferior to those provided by the relevant modern award that would otherwise apply. Sunsetting these transitional instruments (following an extended transitional period provided upon commencement of the FW Act more than a decade ago) is expected to uplift terms and conditions of employment for many employees as they would become covered by the relevant modern award or (if made) enterprise agreement. 88. Sunsetting these instruments will also mean that other employers will no longer have to compete with businesses operating under terms and conditions of employment that were assessed under an inferior test. This would remove the unfair competitive advantage that the continued operation of these instruments may facilitate by allowing some employers to provide entitlements less beneficial than those under the relevant modern award. 89. Businesses would be bound by the relevant modern award which sets employees' pay and conditions (alone or in combination with contracts of employment), or may opt to bargain for a new agreement better suited to their circumstances. This will level the playing field, reduce complexity and encourage agreement making. Enterprise agreement approval 90. The amendments to simply enterprise agreement approval requirements would remove detailed steps that employers must take with within fixed timeframes before employees vote to approve an agreement, including the requirement to provide employees with a prescribed NERR. 91. This may engage the right to just and favourable conditions of work and the right to freedom of association and collective bargaining. 92. Importantly, the FWC would still need to be satisfied that an enterprise agreement has been genuinely agreed to by the employees that will be covered by the agreement. Additional safeguards would include that the FWC must be satisfied that the employees requested to vote on the agreement have a sufficient interest in its terms and are sufficiently representative. These changes are intended to replace a rigid, rules-based approach to protecting employees' rights to participate in collective bargaining with a more suitable, principles-based approach, without weakening the protections. House of Representatives xix Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 93. The requirements in relation to the NERR would also be retained in the case of single enterprise agreements (where no single interest employer authorisation is in operation). 94. The intention is to simplify detailed and complex pre-approval requirements to encourage enterprise bargaining and ensure the FWC is not required to refuse to approve an agreement due to minor technical or procedural deficiencies despite the agreement being supported by a majority of employees after collective bargaining in good faith. The amendments would therefore be compatible with and promote the right to just and favourable conditions of work and collective bargaining. Simplifying the process to initiate bargaining for replacement agreements 95. Allowing parties to initiate bargaining for a replacement agreement by written request enhances employees' right to just and favourable conditions in work. The proposed amendments would remove barriers to commencing collective bargaining in circumstances where the proposed qualifying agreement covers the same or substantially the same employees, by allowing employee representatives to initiate bargaining by written request. This would reduce delays to commencing bargaining by removing the need for employers to agree to bargain or for employee representatives to seek a separate determination, order or authorisation from the FWC. Reducing barriers to bargaining promotes collective bargaining, which supports just and favourable conditions of work. Better off overall test 96. The FWC assesses enterprise agreements using the BOOT. The BOOT promotes the right to work and just and favourable conditions of work by ensuring employees covered by an enterprise agreement are better off overall in comparison to the relevant modern award. 97. The amendments would address inflexibilities that have arisen in the implementation of the BOOT over time and restore primacy to the parties' agreement, subject to appropriate statutory protections. The FWC's task would be re-focused on the deal the parties had bargained, by requiring the FWC to consider the views of the specified persons and give primary consideration to any common view expressed by the specified bargaining representatives. The legislation would also clarify that the BOOT must be applied flexibly as a global assessment, not a line-by-line comparison. The FWC would only be required to apply the BOOT having regard to the patterns or kinds of work, or types of employment that were reasonably foreseeable at the time the BOOT was applied. This would restore the intended operation of the BOOT. 98. The FWC would be empowered to amend or excise terms that would otherwise not meet the BOOT. The FWC currently may accept an undertaking to address any concerns it may have about an agreement not passing the BOOT. This proposal would limit the use of undertakings, which can make it harder for workers and managers to Fair Work Legislation xx House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights interpret enterprise agreements, lead to future legal disputes if poorly drafted and cause delays in the agreement commencing. 99. Safeguards would ensure that changes to the BOOT would not leave workers worse off. A new 'reconsideration process' would allow employers, employees or their representatives to seek to have the BOOT reconsidered by the FWC where there has been a material change in working arrangements, or where their circumstances were not properly considered by the FWC during the approval process. 100. The changes to the BOOT and associated safeguards will continue to ensure workers are not worse off, while promoting collective bargaining. As such, this reform supports just and favourable conditions of work. Dealing with errors in enterprise agreements 101. Part 17 of Schedule 1 would remove unnecessary complexity in agreement-making by empowering the FWC to vary enterprise agreements to correct or amend obvious errors, defects or irregularities. It would also empower the FWC to validate a decision to approve an enterprise agreement or variation, in circumstances where the wrong version of the document was inadvertently submitted to the FWC for approval. 102. These measures would make it easier for parties (or the FWC) to take the necessary steps to make corrections to ensure that enterprise agreements approved by the FWC accurately reflect the agreement between the parties, without undue complexity, process or cost. Bargaining disputes 103. The proposed amendments in Part 18 of Schedule 1 would support the right to just and favourable conditions of work by providing an effective means to resolve otherwise intractable disputes about terms and conditions of employment to be established by enterprise agreement. Without such a provision, the dispute may be irresolvable and there would be no change to the conditions of work. 104. While the primary focus of the FW Act would remain on supporting parties to reach their own agreements through collective bargaining in good faith, the FWC would, following the proposed amendments, have the ability to determine any outstanding matters by arbitration where there is otherwise no reasonable prospect of the parties reaching agreement. In arbitrating a workplace determination, the FWC would, among other things, be required to: • take into account the interests of the employers and employees who will be covered by the workplace determination; • exercise its powers in a manner that is fair and just; and • ensure that the workplace determination would, if it was an enterprise agreement, meet the BOOT against the relevant modern award. House of Representatives xxi Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Supported bargaining 105. The Bill would promote the right to work and rights in work by amending the existing low-paid bargaining stream to assist people who face barriers to bargaining to negotiate their terms and conditions of employment. By increasing access to the renamed supported bargaining stream, the Bill intends to assist workers who require support to bargain. This might include those in low paid occupations, government-funded industries, and female-dominated sectors, as well as employees with a disability, employees who are culturally and linguistically diverse and First Nations employees who may be employed in such sectors and face additional hurdles. 106. Increasing the accessibility of collective bargaining promotes the right to enjoyment of just and favourable conditions of work by enabling employees to leverage the collective power of multi-employer bargaining to secure safe, healthy and fair working conditions. 107. When making a proposed supported bargaining authorisation, the FWC must be satisfied that at least some employees are represented by a registered organisation. Employee organisations would also be empowered to apply for a variation of a supported bargaining agreement to cover an additional employer. 108. The proposed provisions recognise the important role that trade unions play in advocating for the collective interests of employees during bargaining, particularly for employees who may require support in bargaining. Single interest employer authorisations 109. Items 633-635 of Part 21 would support employers with clearly identifiable common interests to bargain together in certain circumstances under a single interest employer authorisation for terms and conditions of employment that would apply to the cohort of employees. These items would also amend existing sections 248-249 of the FW Act to permit a bargaining representative of an employee who will be covered by the agreement to apply for a single interest employer authorisation to cover two or more employers, where there is majority support of employees. 110. Items 637 and 639 of Part 21 would also permit employee bargaining representatives to vary a single interest employer authorisation to add or remove an employer's name from the authorisation. Adding an employer to a single interest employer authorisation would require majority support of employees while removing an employer would require a change in the employer's circumstances. 111. Item 629 would also insert new Subdivision AD--Variation of single interest employer agreement to add employer and employees, into existing Division 7 of Part 2-4 of the FW Act. New Subdivision AD would permit an employee organisation covered by an existing single interest employer agreement to apply for approval of a variation to the agreement to extend its coverage to a new employer and employees, provided certain criteria are satisfied, including majority support of the employees. Fair Work Legislation xxii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 112. Part 21 therefore supports access by employees via their representatives to an expanded single interest employer bargaining framework and the outcomes of collectively bargained terms and conditions. This would support and more widely promote the right to enjoyment of just and favourable conditions of work. Varying enterprise agreements to remove employers and their employees 113. By Part 22 of Schedule 1, the FWC would be empowered (upon application) to vary single interest employer agreements and multi-enterprise agreements to remove an employer and affected employees from coverage. The exercise of this power may engage the right to just and favourable conditions of work, as affected employees would no longer be covered by the relevant agreement (i.e. being an instrument that determines their terms and conditions of employment). 114. Safeguards are included to ensure affected employees are sufficiently protected. A decision to make a variation would be a joint decision, by both employer and affected employees. Affected employees would need to have a reasonable opportunity to decide on whether to make the variation. A decision to make a variation would not take effect unless approved by the FWC. The FWC would be required to scrutinise the process and ensure the integrity of the decision before approving it. Enhancing the small claims processes 115. The compliance and enforcement measures promote the right to work and rights in work set out in articles 6 and 7 of the ICESCR by making the small claims process a more accessible mechanism for employees to recover underpayments. In particular: • employees would be able to recover their entitlements more simply, quickly and cheaply through the small claims process, as the jurisdiction would be expanded by increasing the small claims cap (i.e. the maximum amount an employee may claim using the small claims procedure) from $20,000 to $100,000; and • successful employees would be able to apply to get any filing fees they have paid to the court back from the other party (as costs), to ensure they are not initially deterred from brining small claims proceedings due to cost, and they keep more of any compensation that the court awards to them. The right to protection and assistance for families 116. Article 9 of the ICESCR provides for the right of everyone to social security, including social insurance. Elaborating on Article 9, the Committee on Economic, Social and Cultural Rights provided in General Comment 19 that 'States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work'.1 Workers' compensation is analogous to social insurance in that it 1 Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc E/C.12/GC/19 (2008), [17]. House of Representatives xxiii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights provides payment of wages and medical costs to employees for injuries occurring as a result of their employment. 117. The right to protection and assistance to families in Article 10(2) of the ICESCR, recognises protection should be accorded to mothers during a reasonable period before and after childbirth. Workers' Compensation Legislative Presumptions for Firefighters 118. The amendments to the firefighter provisions of the SRC Act are intended to improve the physical and mental health outcomes for firefighters covered by the SRC Act by simplifying their access to workers' compensation. It does so by reducing the period to qualify for presumptive liability for oesophageal cancer from 25 years to 15 years; by expanding the scope of the presumptive provisions to include malignant melanoma; and by allowing coverage of the presumptive provisions to extend to volunteer firefighters of the Australian Capital Territory. 119. If a firefighter does not satisfy the requirements of subsection 7(8) of the SRC Act (for example, by not meeting the qualifying period specified for a particular disease), it remains open for the employee to otherwise establish, on the balance of probabilities, that the disease was contributed to, to a significant degree, by the employee's employment. Anti-discrimination 120. Extending the anti-discrimination protections in the FW Act to the attribute of breastfeeding would provide protection for women who have to breastfeed or express milk while at work. This measure would positively engage the right to protection and assistance for families by protecting mothers from discrimination. Right to physical and mental health 121. Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic, Social and Cultural Rights has stated that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extending to underlying determinants of health such as safe and healthy working conditions. Prohibiting sexual harassment in connection with work 122. As noted in the Respect@Work Report, sexual harassment in the workplace can have significant negative effects on an individual's health and wellbeing. 123. The Bill would promote the right to the enjoyment of the highest attainable standard of physical and mental health by prohibiting sexual harassment in connection with work and by enabling the FWC to make orders to stop sexual harassment in relation to a Fair Work Legislation xxiv House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights broader range of workers and in relation to prospective workers. This would provide a means of early intervention to stop and prevent sexual harassment for more Australians. Right to an effective remedy and right to a fair hearing 124. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an effective remedy for persons who have suffered human rights violations by Australian authorities, as well as persons who have suffered discrimination perpetrated by Australian authorities. The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to the persons who have suffered human rights abuses. Reparation can involve measures including compensation, restitution, rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws and practices. 125. Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at law, all persons have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law. Prohibiting sexual harassment in connection with work 126. The Bill would positively engage the right to a fair remedy by including a new dispute resolution jurisdiction for the FWC to deal with sexual harassment disputes. At first instance, the FWC could deal with the dispute by mediation or conciliation. If this were unsuccessful, the parties could agree to the FWC arbitrating the dispute or the aggrieved person could initiate civil proceedings. 127. The Bill would further promote the right to an effective remedy by enabling an aggrieved person to seek a remedy from an employer or principal in relation to a contravention by an employee or agent. This would ensure a remedy is available, even where a remedy could not be obtained from the perpetrator themselves. This provision would be proportionate as it would limit the ability of an aggrieved person to seek a remedy from a principal where the principal took all reasonable steps to prevent the sexual harassment from occurring. 128. The Bill would also include anti-double dipping rules to ensure aggrieved persons cannot obtain multiple remedies in relation to the same conduct, for example, under an anti-discrimination law. Anti-discrimination 129. The anti-discrimination amendments would promote the rights to an effective remedy and fair hearing. Adding breastfeeding, gender identity and intersex status to the list of protected attributes, in conjunction with the existing compliance and enforcement provisions of the FW Act, would provide an enforcement mechanism for people who have been discriminated against based on these attributes. House of Representatives xxv Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 130. These additions would not change the processes for an applicant having their dispute heard by the FWC if there is an alleged contravention of one of the provisions prohibiting discrimination in the FW Act. 131. These amendments also would not prevent applicants applying to have their discrimination disputes investigated and conciliated by the Australian Human Rights Commission rather than dealt with by the FWC. Flexible work 132. The Bill would positively engage the right to a fair remedy by including a new dispute resolution jurisdiction for the FWC to deal with disputes where a request for a flexible working arrangement has been refused. The Bill would require the parties to first attempt to resolve the dispute at the workplace level. If this is unsuccessful, the Bill would allow the FWC to deal with the matter as it considers appropriate, including by arbitration. 133. The Bill would also promote the right to an effective remedy by enabling the FWC to make a variety of orders, including that the employer grant the request for flexible work arrangements, or make other changes to accommodate the employee's circumstances. Better off overall test 134. The Bill introduces an effective remedy through the reconsideration process, which would allow employers, employees and their representatives to apply to the FWC to reconsider whether an enterprise agreement passes the BOOT. For example, when the working pattern an employee changes, the FWC can reassess the agreement to ensure the employee is not worse off. Criminal process rights 135. Articles 14 and 15 of the ICCPR protect criminal process rights: • Article 14(1) provides that all persons shall be equal before the courts and tribunals, and that in the determination of any criminal charge against a person, that person is entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law; • Article 14(2) provides that those charged with a criminal offence are presumed innocent until proven guilty according to the law; • Article 14(3) sets out a range of guarantees that each person shall be entitled to in the determination of any criminal charge against them. This includes the right not to be compelled to testify against themselves or to confess guilt; • Article 14(7) protects against the risk of double punishment; and • Article 15(1) protects against criminal penalties applying retrospectively. Fair Work Legislation xxvi House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Abolition of the Registered Organisations Commission 136. The Bill engages the right to a fair and public hearing because it would establish an infringement notice scheme under the Regulatory Powers Act. 137. An infringement notice may be issued to a person (recipient) in relation to a suspected contravention of a relevant provision, in lieu of litigation. However, the recipient's right to a fair and public hearing by a competent, independent and impartial tribunal is preserved as they may elect to have the matter heard by a court rather than paying the amount specified in the notice. Additionally, the Regulatory Powers Act requires the nature of this right to be stated in the infringement notice. This ensures the recipient is aware of their right to have the matter heard by a court. Abolition of the Australian Building and Construction Commission 138. Item 229 of the Bill would repeal section 62 of the BCIIP Act. Section 62 creates an offence for failing to comply with an examination notice, with a maximum penalty of imprisonment for six months. There are limited exceptions, including that complying with a notice would disclose information that is the subject of legal professional privilege or would be protected by public interest immunity. Section 62 engages the right to be presumed innocent under article 14(2) by shifting the evidential burden of proving an exception onto the defendant. By repealing section 62, item 229 would enhance this right. 139. A person is not excused from giving information, producing documents or records, or answering a question under an examination notice on the basis that it might tend to incriminate the person or otherwise expose the person to a penalty or other liability (section 102). This interferes with the right against self-incrimination. Removing the BCIIP Act's examination notice regime would thus enhance the right not to incriminate oneself in relation to provisions that have the potential to attract criminal penalties. Prohibiting sexual harassment in connection with work 140. The amendments to prohibit sexual harassment in connection with work do not directly engage rights in relation to criminal process but they do provide for civil remedies. 141. Under new Part 3-5A, a court could order a party that has contravened the new prohibition on sexual harassment in connection with work to pay a pecuniary penalty. Pecuniary penalties could also be ordered in relation to contraventions of a stop sexual harassment order or an order made by the FWC when arbitrating a sexual harassment dispute. The maximum penalty a court could order would be 60 penalty units. This is consistent with the maximum penalty that currently applies under the FW Act in relation to analogous conduct, for example, discriminatory adverse action. This penalty is proportionate to the seriousness of the contravention, noting that workplace sexual harassment can have significant and long-term psychological impacts. House of Representatives xxvii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 142. New Part 3-5A would include a vicarious liability provision modelled on section 106 of the SD Act. The provision would make employers and principals liable if their employee or agent contravened the new prohibition on sexual harassment in connection with the employment of the employee or with the duties of the agent as an agent. This is necessary to ensure aggrieved persons can obtain a remedy from a principal, particularly in circumstances where a perpetrator is unable to offer compensation. The vicarious liability provision is proportionate as it does not apply if a principal proves that it took all reasonable steps to prevent the contravention. Fixed term contracts 143. Section 333L would empower the FWC to resolve disputes in relation to an employee's status as a fixed term employee. Where the parties do not agree to resolve the dispute after informal discussions at the workplace level, one of the parties may refer the dispute to the FWC. The FWC may deal with the matter as it considers appropriate, including by conciliation, mediation, expressing an opinion, or making a recommendation. Where the parties consent, the FWC may deal with the dispute by arbitration. 144. The amendments would not alter the FWC's existing procedures in relation to resolving disputes, but would simply expand the kinds of disputes which the FWC may consider. The amendments would preserve a person's right to a fair hearing before an independent tribunal and are consistent with Article 14 of the ICCPR. 145. The parties may further apply to the Magistrates' Court or the Federal Circuit and Family Court under their small claims jurisdiction, for a determination as to their rights under the contract. Flexible work 146. Part 11 would empower the FWC to resolve disputes in relation to flexible working arrangements. Where the dispute relates to an employer's refusal to grant or respond to a request for a flexible working arrangement, the FWC would be empowered to resolve the dispute by mandatory arbitration. The FWC would be empowered to make a number of orders in relation to arbitration. If the FWC is satisfied that there are no reasonable prospects of the parties otherwise resolving the dispute, the FWC would be empowered to make an order that the employer grant the request or make other specified changes to the employee's working arrangements. 147. The amendments would not alter the FWC's existing procedures in relation to resolving disputes, but would simply expand the kinds of disputes which the FWC may consider. The amendments would preserve a person's right to a fair hearing before an independent tribunal and are consistent with Article 14 of the ICCPR. Fair Work Legislation xxviii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Enhancing the small claims processes 148. The compliance and enforcement measures would also promote the rights to a fair trial and fair hearing set out in Article 14(1) of the ICCPR by reducing cost and complexity of legal processes as a barrier for workers seeking to bring an underpayment claim against their employer. Prohibiting employment advertisements with pay rate that would contravene the FW Act 149. The proposed prohibition on advertising employment opportunities at below minimum wages is also aimed at reducing worker exploitation. It would send a clear message to employers that they must verify the correct entitlements prior to advertising. It would help promote a culture of compliance with industrial relations laws by encouraging employers to consider their workplace obligations before hiring employees, which should help to reduce unintentional underpayments of employees. Civil Remedy Provisions 150. The Parliamentary Joint Committee on Human Rights (PJCHR) Practice Note 2 provides that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. A penalty may be considered 'criminal' where it: • is classified as criminal under Australian law; • is intended to punish or deter, and applies to the public in general (rather than being restricted to people in a specific regulatory context); or • includes imprisonment or a substantial pecuniary sanction. 151. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of ICCPR. New civil remedy provisions in the Bill 152. The Bill includes several new civil penalty provisions (see Table 1, below): • section 44 - non-compliance with flexible working arrangement provisions; • subclause 65C(6) - non-compliance with a term of a FWC order made under new subsection 65C(1); • clause 226A - non-compliance with a guarantee of termination entitlements; • clause 333D - prohibition on pay secrecy terms; • subclause 333E(1) - limitations on fixed term contracts; • clause 333K - failure to provide Fixed Term Contract Information Statement; • subclause 527D(1) - prohibiting sexual harassment in connection with work; • clause 527K - contravening a stop sexual harassment order; House of Representatives xxix Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights • subclause 527S(4) - contravening a compensation order in an arbitrated sexual harassment dispute; • subclause 536AA(1) - advertising employment with a rate of pay that contravenes the FW Act; and • subclause 536AA(2) - advertising piecework without including periodic rate of pay. 153. The Bill also includes new civil penalty provisions in the FW Transitional Act (see Table 1, below): • Schedule 16, item 4C - non-compliance with obligation to notify employees about automatic sunsetting. 154. In relation to fixed term contracts, the Bill would introduce an evidentiary burden of proof on a party who wishes to rely on an exception or other excuse under the FW Act. To the extent that this evidentiary burden would interfere with the presumption of innocence, it represents a necessary, reasonable and proportionate engagement of the right. The reverse onus is reasonable and necessary in circumstances where the employer is likely to be the only party in the employment relationship who has relevant records and business knowledge to provide evidence as to whether or not a relevant exemption applies. The civil remedy attaching to the provision is proportionate to achieving the legitimate objective of protecting employee entitlements under the FW Act and reducing the risk of non-compliance. 155. Part 25 of Schedule 1 to the Bill would create new civil penalty provisions which would prohibit employers from advertising jobs with pay rates that do not comply with the FW Act or a Fair Work instrument. It would also prohibit employers offering piecework in advertising without indicating when the employee would also be entitled to a periodic rate of pay. The new requirements would help promote a culture of compliance with industrial relations laws by encouraging employers to consider their workplace obligations before hiring employees, which should help to reduce unintentional underpayments of employees. This attracts a maximum penalty of 60 penalty units for individuals (5 times higher for bodies corporate). Would the new civil remedy provisions be considered criminal penalties? 156. The penalty provisions of the FW Act are expressly classified as civil penalties (section 549). These provisions create pecuniary penalties in the form of a debt payable to the Commonwealth or other person. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. There is no possibility of imprisonment for failing to pay a penalty (section 571). 157. The purpose of the civil penalty provisions is to encourage compliance with the FW Act, which supports the implementation of Australia's obligations under international law. The penalties would generally apply to defined classes of employers and not the Fair Work Legislation xxx House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights public in general. While the FWO has enforcement powers, proceedings may also be brought by an affected employee or union. In addition, the civil remedy provisions would apply in the regulatory environment for industrial relations, rather than to the public at large. These factors all suggest that the civil penalties imposed by the FW Act are civil rather than criminal in nature. 158. The severity of the relevant civil penalties should be considered low. They are pecuniary penalties (rather than a more severe punishment like imprisonment) and there is no sanction of imprisonment for non-payment of penalties. The penalties are at or below the level usually considered to be severe enough to be classified as criminal (that is, below 60 penalty units for individuals). 159. As the proposed new civil penalties would reasonably be characterised as not being criminal in nature, the specific criminal process guarantees in Articles 14 and 15 of the ICCPR would not apply. In any event, however, new civil penalties, and the civil penalty regime in the FW Act more broadly, comply with the requirements of Articles 14 and 15 in that they would not apply retrospectively (Article 15(1)), the presumption of innocence applies (Article 14(2)), and there is no risk of double punishment as there are no comparable criminal penalties (Article 14(7)). 160. On this basis, the proposed new penalties should not be considered criminal for the purposes of human rights law. Right to privacy and reputation 161. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home and correspondence. This includes respect for informational privacy, including in respect of storing, using, and sharing private information and the right to control the dissemination of personal and private information. Privacy guarantees a right to secrecy from the publication of personal information. It also prohibits unlawful attacks on a person's reputation. Abolition of the Registered Organisations Commission 162. The Bill would allow for the transfer of records, documents or information from the RO Commissioner to the General Manager. To the extent that this information includes personal information, these provisions would engage the right to privacy. 163. These provisions are essential to enable the General Manager to carry on the functions of the RO Commissioner and ROC. The Commissioner receives and scrutinises (as part of their statutory functions) a number of periodic reports and statements from registered organisations, and they are also responsible for certifying auditors for purposes of the RO Act. As part of these functions, the Commissioner collects personal information about individuals (e.g. members of registered organisations, officers of registered organisations, auditors and agency staff etc.). House of Representatives xxxi Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 164. The provisions allowing the transfer of these records, documents and information would support the legitimate purpose of the General Manager, in carrying on the functions of the Commissioner and ROC (after that statutory office and agency are abolished). This would include compliance and enforcement activities in relation to conduct regulated by the RO Act, both before and after commencement of the proposed reforms. Both agency heads are Commonwealth statutory office holders, and their agencies are Australian Government agencies. As such they are subject to the same or similar regulatory frameworks in terms of privacy. 165. Both agencies publish information about their privacy policies on their websites, as well as information statements. Safeguards, such as anonymity for individuals making protected disclosures, and the ability for those individuals to request that their details are not disclosed to others, are in place to ensure the information is used, stored and disclosed in line with privacy standards. Abolition of the Australian Building and Construction Commission Examination powers 166. Item 229 of the Bill would repeal Part 2 of Chapter 7 of the BCIIP Act, which creates an examination notice regime under which a person can be compelled to give information, produce documents, or attend an examination before the Australian Building and Construction Commissioner (ABC Commissioner) to answer questions. 167. In requiring a person to produce documents, give information or attend an examination to answer questions with harsh penalties and limited excuses for not doing so, these provisions limit the right to privacy. By repealing the provisions relating to the examination notice regime, item 229 would promote the right to privacy. Disclosure of information and transfer of records 168. Items 334 and 335 of the Bill would provide for the transfer of the ABC Commissioner's documents and records, including personal information, to the FWO. 169. Therefore, items 334 and 335 would engage the right to privacy. The transfer of these documents and records would ensure the preservation of certain records and documents which would either be required for operational reasons (including to enable the FWO to take responsibility for the ABCC's pending court proceedings and certain ABCC investigations) or need to be preserved in accordance with the provisions of the Archives Act 1983. 170. Item 299 of the Bill would repeal section 106 of the BCIIP Act, which restricts the recording or disclosure of information obtained under an examination notice. This information could include personal information. In repealing section 106, item 299 removes a confidentiality provision relating to personal information, thus engaging the right to privacy. Fair Work Legislation xxxii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 171. Item 330 would ensure that despite the repeal of section 106, information that was obtained under the examination notice regime continues to be protected. As such, existing protections for personal information would be maintained. By providing that the terms in preserved section 106 relating to the ABC Commissioner and various members of the Office of the ABC Commissioner are to be read as the equivalent terms in relation to the FWO and various members of the Office of the FWO, item 330 would enable these people to make recordings or disclosures of protected information for very limited purposes including to assist in law enforcement. This would engage the right to privacy. To the extent that this item may limit the right to privacy, this would be a permissible limitation, as disclosure of information would continue to only be permitted to the extent that it is necessary for the purposes of performing legislated functions and enforcing relevant laws and there would be no derogation in protection compared to the current legislative scheme. 172. Similarly, the FWO may disclose, or authorise the disclosure of, certain information for limited purposes in accordance with section 718 of the FW Act. This would include information contained in the documents and records that would be transferred to the FWO under items 334 and 335. 173. Permitted uses under section 105 of the BCIIP Act include that the disclosure is necessary or appropriate for the purposes of the performance or exercise of the ABC Commissioner's functions or powers (which include enforcement of the FW Act) or to assist in the enforcement of the law. Section 718 is substantially the same as section 105 of the BCIIP Act, meaning existing permitted uses of information would continue to apply. Item 337 further makes clear that the FWO must not disclose or authorise the disclosure of information under section 718 of the FW Act if the information is protected information. 174. Further, item 329 would enable the FWO or a Fair Work Inspector (FW Inspector) to, in the performance of their functions or exercise of their powers, use any information or evidence obtained by the ABC Commissioner or an ABC Inspector in the performance of their functions or the exercise of their powers under the BCIIP Act. As information or evidence could include personal information, and item would provide for the use of it, this item engages the right to privacy. 175. As the FWO would become the sole federal workplace relations regulator and would continue certain processes commenced by the ABCC, it is important that the FWO and certain members of the Office of the FWO are empowered to disclose information for the purposes of carrying out these functions. To the extent that the FWO and FW Inspectors are being empowered to use, disclose or authorise the disclosure of information that was previously held by the ABCC, this would engage the right to privacy; however, this limitation would be reasonable and necessary as it would not fundamentally alter circumstances in which the information could be used or disclosed and would ensure the FWO can effectively regulate the building and construction House of Representatives xxxiii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights industry. It also ensures Commonwealth resources would not be wasted by ensuring the FWO can use previously collected information to regulate the building and construction industry. 176. Item 300 of the Bill would repeal section 107 of the BCIIP Act. Section 107 provides that information relating to the affairs of individuals must not be included in any report prepared by the ABC Commissioner at the request of the Minister or annual or quarterly report the ABC Commissioner is required to prepare. As the Bill would abolish the ABC Commissioner, section 107 would be redundant. Instead, the FWO would be given responsibility to report on the ABCC's activities in its annual report for the 2022-23 financial year (item 331). Section 714A of the FW Act provides the equivalent restrictions on reports prepared by the FWO to ensure they do not include information relating to an individual's affairs. As such, while the right to privacy would be engaged by the repeal of section 107 of the BCIIP Act, existing protections for personal information would be maintained. 177. The Bill maintains existing protections for information transferred to the FWO. As such, the protection of personal information would remain the same after the transfer. Therefore, while this item engages the right to privacy, it does not diminish it. Prohibiting pay secrecy 178. The Bill would positively engage the right to privacy by ensuring that employees have a positive workplace right to not disclose details of their remuneration. Although an employee would have a right to ask a co-worker about their remuneration, each employee also has the workplace right to refuse to disclose this information. Prohibiting sexual harassment in connection with work 179. The Bill would enable the FWC to deal with a dispute about sexual harassment in connection with work. While these amendments would not directly engage the right to privacy, section 590 of the FW Act enables the FWC to inform itself in relation to any matter before it in such a manner as it considers appropriate. This can include requiring a person to provide documents or records to the FWC and could result in the collection of personal information in sexual harassment disputes. 180. The ability of the FWC to collect this information is proportionate, appropriate and necessary to facilitate the effective administration of the new prohibition on sexual harassment. Given the health risks posed by workplace sexual harassment, it is essential that the FWC is able to easily and quickly access information that relates to a sexual harassment application. Any information collected through these processes would be handled in accordance with the FWC's privacy obligations under legislation such as the Privacy Act 1988. 181. Any conference the FWC conducted in a sexual harassment matter would have to held in private to protect both applicants and witnesses. Fair Work Legislation xxxiv House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights The right to freedom of expression 182. Article 19(2) of the ICCPR protects individuals' freedom of expression in any medium. It protects both the ability to impart information and ideas and to receive them. Freedom of expression may be limited under Article 19(3) only where provided for by law and when necessary to protect the rights or reputation of others, national security, public order or public health or morals. Abolition of the Australian Building and Construction Commission Repealed building industry specific regulations 183. Items 223 and 224 of the Bill would repeal Chapters 5 and 6 of the BCIIP Act, which prohibit: • a person from organising or engaging in certain kinds of industrial action (section 46); • industrially motivated picketing (section 47); • 'threatening to organise or take' action relating to coercion (sections 52 and 54); and • a person from advising, encouraging, inciting, or coercing another person to contravene certain provisions of the BCIIP Act (section 58). 184. These sections regulate the content of speech and limit the ability of construction industry participants to impart and receive information and ideas. Additionally, sections 46 and 47 limit building industry participants' ability to together communicate in a non- verbal manner to express their views on industrial matters. These provisions operate in such a way that they may restrict the freedom of expression contained in Article 19 of the ICCPR. 185. In October 2014, the PJCHR stated that it considered that the provision prohibiting picketing was likely to be incompatible with the right to freedom of expression.2 186. By repealing the above prohibitions in Chapters 5 and 6 of the BCIIP Act, item 223 and 224 would promote the right to freedom of expression. 187. Coercion would still be regulated by the FW Act. For example, section 343 of the FW Act prevents a person from organising or taking, or threatening to organise or take, any action against another person with intent to coerce another person to exercise or not exercise a workplace right. This covers the kind of conduct addressed by section 54 of the BCIIP Act. Section 355 of the FW Act prohibits a person from taking action with intent to coerce a person in relation to the allocation of duties or another person. This covers the type of conduct covered by section 52 of the BCIIP Act. 2 PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.12. House of Representatives xxxv Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Protected information 188. Section 106 of the BCIIP Act restricts the recording and disclosure of protected information (information collected under an examination notice) by people who obtain protected information in the course of their employment. As this section would be repealed by item 299, item 330 would maintain the existing limitations on the recording and disclosure of protected information. Item 337 further provides that the FWO must not disclose or authorise the disclosure of information under section 718 of the FW Act if the information is protected information. Items 330 and 337 limit the ability of certain people to communicate information, thus engaging the right to freedom of expression. 189. The purpose of these non-disclosure provisions is to ensure the continued confidentiality of certain sensitive information once it is transferred to the FWO. As such, items 330 and 337 maintain existing limitations, which are necessary for the respect of the rights of others, including the right to privacy and reputation as discussed above. Prohibiting sexual harassment in connection with work 190. Part 8 of the Bill would limit a person's right to freely express themselves by prohibiting words or conduct that meet the definition of sexual harassment. This is consistent with other anti-discrimination legislation which seeks to achieve the appropriate balance between protecting against discrimination and protecting the right of an individual to express themselves. The new prohibition on sexual harassment would not limit freedom of expression beyond existing limitations on conduct amounting to sexual harassment that already exist under anti-discrimination legislation. 191. The new prohibition has a clear legal basis which is precise enough to ensure people are aware of the legal consequences of their actions. 192. Further, the limitation on the right of expression is necessary to achieve a legitimate objective: protecting workers, prospective workers and persons conducting businesses and undertakings from a form of sex discrimination. The limitation on the right of freedom of expression is reasonable, necessary and proportionate to this objective. The extent to which the right to freedom of expression is limited is the least restrictive way of achieving the objective. The amendments would adopt the definition of sexual harassment in the SD Act, which includes an objective reasonable person test and the requirement to consider any relevant circumstances. This provides an important safeguard of the right to freedom of expression. The targeted focus of these amendments would ensure that the right to freedom of expression is only limited in instances of conduct that the legislation appropriately aims to address workplace sexual harassment. Fair Work Legislation xxxvi House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Right to peaceful assembly 193. Article 21 of the ICCPR provides that the right of peaceful assembly shall be recognised and that no restrictions may be placed on this right other than those imposed in conformity with the law. It also permits restrictions which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protections of the rights and freedoms of others. Abolition of the Australian Building and Construction Commission 194. Item 223 of the Bill would repeal Chapter 5 of the BCIIP Act. In prohibiting industrially motivated picketing and certain kinds of industrial action, Chapter 5 of the BCIIP Act limits the ability of construction industry participants to peacefully protest, thereby restricting their right to freedom of peaceful assembly. The ability of a person to seek an injunction against an industrially motivated picket and certain kinds of industrial action (section 48) further limits the right to freedom of peaceful assembly by enabling the prevention of a peaceful demonstration from going ahead, or the stopping or disrupting of a peaceful demonstration. 195. In October 2014, the PJCHR stated that it considered that the provision prohibiting picketing was likely to be incompatible with the right to freedom of assembly given its potential broad application and the fact that protest activities are already regulated under civil and criminal laws.3 196. Repealing Chapter 5 (and within it, section 48) would, therefore, promote the right to freedom of peaceful assembly within well recognised legal limits. 197. Section 7 of the BCIIP Act in effect requires advance notice and agreement in writing for certain kinds of actions by building industry participants for those actions to not constitute 'industrial action', which could constitute 'unlawful industrial action'. The requirement for advance notification of a peaceful demonstration further restricts the ability of workers to assemble. 198. Therefore, by repealing section 7, item 196 of the Bill would promote the right to freedom of assembly within well recognised legal limits. The right to freedom of association 199. Article 22 of the ICCPR protects the right to freedom of association, including the right to form and join trade unions. Article 8(1)(c) and (d) of the ICESCR also support the right to freedom of association by providing that States Parties undertake to ensure the right to form and join trade unions and the right to strike, including picketing activities. There are also specific obligations relating to freedom of association in the ILO's 3 PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.12. House of Representatives xxxvii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) and Right to Organise and Collective Bargaining Convention 1949 (No. 98). Abolition of the Australian Building and Construction Commission 200. Item 224 of the Bill would repeal Chapter 6 of the BCIIP Act which includes sections 52 to 54, which could be seen to protect the right to freedom of association. • Section 52 provides that it is unlawful for a person to organise or take (or threaten to organise or take) any action with intent to coerce another person to employ or not employ a person, engage or not engage a contractor or allocate or not allocate duties or responsibilities relating to building work. This could protect a person's right to join a trade union of their choice by prohibiting a third party from seeking to coerce an employer or contractor to engage or not engage a person because of their union membership. • Section 53 makes it unlawful for a person to do (or threaten to do) something with intent to coerce another person to nominate or pay superannuation contributions to a particular superannuation fund. This could ensure a person has freedom to choose to join or not join a union affiliated superannuation fund. • Section 54 prohibits an employer from coercing or applying undue pressure to an employee regarding who is to be the employee's bargaining representative for a proposed enterprise agreement. This could protect a person's right to join a union of their choice. 201. By removing sections 52-54, item 224 would engage the right to freedom of association by removing prohibitions on certain action that may be taken against a person because of their decision to join, or not to join, a trade union. 202. Part 3-1 of the FW Act contains a comprehensive and robust framework for the protection of freedom of association by prohibiting coercion and providing other general protections. Relevantly, the FW Act prohibits adverse action: • against a person because they have workplace rights - for example, under a workplace law, a modern award or an enterprise agreement (sections 340-342); and • against a person because they are, or are not, a union member, or because they take part in lawful industrial activity, or do not take part in unlawful activity (sections 346-347). 203. Removing sections 52-54 of the BCIIP Act does not detract from workers' right to freedom of association, given there continue to be equivalent and comprehensive safeguards in the FW Act protecting the right to freedom of association. Fair Work Legislation xxxviii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Project agreements 204. Chapter 6 of the BCIIP Act also includes section 59, which prevents the enforcement of project or site-wide agreements where the agreement is entered into with the intention of securing standard employment conditions for building employees working on multi- employer sites. Restricting the enforcement of site-wide agreements could discourage parties across the building and construction industry from negotiating at a site-wide or multi-employer level, which engages the right to organise and collectively bargain. Multi-employer bargaining would be addressed by Supported Bargaining measures and is further discussed above. 205. By repealing this provision, item 224 of the Bill would engage the rights of workers to exercise their right to organise and collectively bargain. Removing section 59 would ensure that the ability to collectively bargain would be regulated by the FW Act rather than industry-specific provisions. Industrial Action 206. Items 193, 195, 196 and 223 of the Bill would repeal sections 7 and 8, Chapter 5 of the BCIIP Act, and definitions relevant to the operation of these provisions. Together, these provisions prohibit certain kinds of industrial action (section 46), including bans on working, employees failing to attend work or employers locking out employees (subsection 7(1)). 207. Chapter 5 also prohibits 'unlawful picketing', which is defined as action that has the purpose of preventing or restricting a person from accessing or leaving a building site for the purposes of advancing industrial objectives of a building industry participant or building association (section 47). As well as providing for civil penalties for unlawful industrial action and unlawful picketing, a person can apply to a court for an injunction against these actions (section 48). 208. These provisions limit the ability of workers in the building and construction industry to organise or undertake collective bargaining, or to picket by providing for penalties and other impediments against doing so. In October 2014, the PJCHR indicated that it considered that the legislation's prohibition on picketing and further restrictions on industrial action contained were incompatible with the right to freedom of association and the right to form and join trade unions.4 209. These provisions are unnecessarily duplicative, targeting conduct already regulated by civil and criminal laws. For example, the industrial action provisions of the FW Act (Part 3-3), secondary boycott provisions of the Competition and Consumer Act 2010 4 PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.8. House of Representatives xxxix Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights (section 45D, etc), the common law (for example, the torts of trespass and nuisance) and State and Territory criminal laws (see, for example, section 545C, Crimes Act 1900 (NSW) (which sets out the offence of unlawful assembly); section 6, Summary Offences Act 1988 (NSW) (which sets out the offence of obstruction of people or traffic in a public place)). 210. Repealing these provisions would bring building and construction industry workers' rights to freedom of association in line with the rights of workers in other industries by removing duplicative industry-specific provisions. Enterprise agreement approval 211. The Bill would engage the right to freedom of association by removing the requirement to provide employees with a prescribed NERR (except in the case of single enterprise agreements where no single interest employer authorisation is in operation). 212. Other safeguards would be provided, including an FWC published statement of principles, which would include information about how employers can inform employees that bargaining has commenced and of their right to be represented by a union or another person or organisation of their choice. 213. The intention is to simplify detailed and complex pre-approval requirements in order to encourage enterprise bargaining and ensure the FWC is not required to refuse to approve agreements due to minor or technical procedural deficiencies that did not affect how employees voted on the agreement. These reforms are therefore compatible with and promote the right to freedom of association. Simplifying the process to initiate bargaining for replacement agreements 214. The proposed amendments to simplify the process for initiating bargaining for a replacement agreement would enhance the right to freedom of association by reducing barriers to trade unions negotiating for their members. By enabling a bargaining representative to formally commence bargaining by issuing a written notice (subject to certain conditions around the existence of an earlier agreement which is being replaced), the amendment would enhance the ability of trade unions to commence bargaining and advocate for their members. Reducing barriers to bargaining enhances the role of trade unions and the right to freedom of association. Bargaining disputes 215. The proposed amendments would support the rights to freedom of association and collective bargaining by providing a framework to support the effective resolution of disputes that arise in collective bargaining. Employees may be represented, including by their trade union, in the course of collective bargaining and in both informal and formal dispute resolution processes. Fair Work Legislation xl House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Industrial action 216. The FW Act permits employers and employees to engage in protected industrial action in support of claims for an enterprise agreement provided that certain requirements are satisfied. One of these requirements is that the action is authorised by a ballot of employees. The amendments proposed to the industrial action provisions would enhance the right to freedom of association as they are designed to reduce the administrative burden on the tribunal and unions when authorisation for industrial action is being sought. Efficiencies would be gained by the establishment of a panel of ballot providers who are 'pre-approved' to conduct PABs. 217. The amendments also seek to de-escalate disputes before industrial action is taken and after industrial action has been authorised. This would be achieved by introducing a compulsory conciliation conference between employers and employees before industrial action is authorised, longer notice periods (for some types of bargaining) before industrial action may be taken and removing the incentive to commence industrial action as soon as possible. The amendments would also enable protected industrial action to be taken in relation to proposed supported bargaining agreements. 218. The amendments would empower the FWC to require bargaining representatives to attend a compulsory conference held during the PAB period before industrial action is authorised. The maximum period is 14 days. The conference would provide opportunities for employers, employees and their respective bargaining representatives to further negotiate prior to engaging in industrial action and potentially resolve matters before industrial action commences. If a bargaining representative does not attend the conference, protected industrial action would not be available in relation to that PAB for whomever did not attend. 219. The amendments would fix 120 hours as the minimum notice period before protected industrial action may commence if the proposed enterprise agreement is a single interest employer agreement or a supported bargaining agreement. This longer period would reflect that these types of agreements are with multiple enterprises. 220. The amendments are aimed at easing further administrative process both on the FWC and the employees' bargaining representatives by increasing the validity of a PAB from 30 days to a period of three months from the date of declaration of the ballot results. The proposed amendments would enhance the right to freedom of association by allowing the employees and employees' bargaining representatives to be able to take all forms of industrial action listed on the PAB within a reasonable period. At the end of this period another PAB would be required to take further protected industrial action. This longer period may lessen the requirement to return to the FWC for extensions and/or further ballots as well as removing the requirement to commence industrial action within a tight timeframe. House of Representatives xli Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Single interest employer authorisations 221. Items 633-635 of Part 21 would amend existing sections 248-249 of the FW Act and therefore the criteria of which the FWC must be satisfied before issuing a single interest employer authorisation. New paragraph 249(3)(a) would provide that the FWC must be satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation. These items would also permit a bargaining representative of an employee who will be covered by a proposed agreement (which may be an employee organisation) to apply for a single interest employer authorisation to cover two or more employers. 222. Items 637 and 639 of Part 21 would also permit a bargaining representative of an employee (which may be an employee organisation) to apply to add an employer's name to or remove an employer's name from an existing single interest employer authorisation, subject to meeting the relevant criteria in each case. 223. In this way, Part 21 would support and promote the right to freedom of association by implicitly recognising the right of employees to join an employee organisation but does not require employees to join an employee organisation. This Part also supports employee organisations to engage in specified collective bargaining activities to represent their members and the interests of their members in bargaining. This provides an additional safeguard for employees' interest when bargaining across multiple employers. 224. Item 629 of Part 21 would insert new Subdivision AD--Variation of single interest employer agreement to add employer and employees, into existing Division 7 of Part 2- 4 of the FW Act. New Subdivision AD would permit an employer (with majority vote of its employees) or an employee organisation that is covered by an existing single interest agreement (with demonstrated majority support from an employer's employees) to vary the agreement to extend its coverage to the new employer and its employees, provided certain requirements are met. 225. New Subdivision AD would support employers and employees to access the benefits of collective bargaining where they may otherwise not be in a position easily to reach an enterprise bargain themselves. It supports freedom of association and collective bargaining by allowing an employee organisation to take specified actions to pursue common goals of improved terms and conditions of employment on behalf of its members. Cooperative workplaces 226. While an exclusion order in operation with respect to an employee organisation gives rise to the exclusion consequences, this would not in any way limit the employees' general ability to choose to join a trade union, nor limit the right of the bargaining representative to represent the employee in other ways, such as in dispute resolution processes, or the ability of the employee to select the bargaining representative again Fair Work Legislation xlii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights while bargaining for a different kind of enterprise agreement. Additionally, an employee would be able to appoint an alternative representative in relation to bargaining for the specific agreement. As such, these measures do not limit the right to join and form trade unions. 227. In circumstances where the FWC makes an order that a trade union is an excluded person for the purposes of an enterprise agreement, the order has the exclusion consequences. This would have the effect of restricting the activities of that trade union and consequently may encroach on the right for that trade union to function freely. However, the excluded person could bargain freely for a single-enterprise agreement (provided that it was not contingent on a single interest employer authorisation). 228. The objective of this measure is to recognise that the ability to participate in the new bargaining streams introduced by the Bill is a special right, and that where a bargaining representative has not complied with the FW Act, they should not be entitled to enjoy this special right. However, a bargaining representative will continue to enjoy the rights and privileges of single-enterprise agreement bargaining (excluding single interest agreement bargaining). Both employee representatives and employers would face consequences for non-compliance. Additionally, the measure seeks to ensure public order by encouraging compliance with FW Act by providing consequences for not doing so. 229. The scope of this limitation on the right would be sufficiently circumscribed. The exclusion could only apply in respect of a specific single interest employer agreement or multi-enterprise agreement. Moreover, employees would remain able to appoint alternative representatives (including other trade unions). Finally, the circumstances which the FWC may consider in determining whether to issue the exclusion order is limited to Court findings of contraventions of the FW Act in the 18 months preceding the date of the application. The FWC must also take into account any remedial efforts to address those contraventions. In these circumstances, to the extent that orders made pursuant to section 178C and the provisions setting out the consequences of those orders may limit the right of trade unions to function freely, those limitations are reasonable, necessary, and proportionate. The right to collective bargaining 230. ILO Convention 98 protects the right of employees to collectively bargain for terms and conditions of employment. It requires States Parties (among other things) to take measures appropriate to national conditions to encourage and promote machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. House of Representatives xliii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Enterprise agreement approval 231. The proposed amendments to enterprise agreement pre-approval requirements promote the right to collective bargaining by streamlining the agreement approval process in order to encourage collective bargaining and ensure the FWC is not required to refuse to approve agreements that have been genuinely agreed just because of minor technical or procedural errors. They are therefore compatible with and promote the right to freedom of association. The right to equality and non-discrimination 232. Both the ICCPR (Article 2(1)) and the ICESCR (Article 2(2)) require States Parties to the covenants to guarantee that the rights set out in these covenants are exercised without discrimination of any kind, including on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR further provides that States Parties must ensure that all persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law. Abolition of the Australian Building and Construction Commission Termination payments for ABCC employees 233. Paragraphs 319(7)(e) and 319(8)(9) would provide that an ABCC employee who is to be paid a redundancy benefit, has reached the age of 45 years and has at least five years of continuous service, is entitled to payment in lieu of notice equal to five weeks of the person's pay. These employees would be entitled to an extra week of payment compared to employees under the age of 45 years (paragraphs 319(7)(f) and 319(8)(e)). 234. These provisions draw distinctions between people based on their age. People below the age of 45 who have had at least five years of continuous service would be treated less favourably than people above the age of 45. As such, the provisions engage the right to non-discrimination. 235. Differential treatment based on a protected status may be permissible if it is based on objective and reasonable grounds in pursuit of a legitimate objective. For example, in some circumstances it may be legitimate to take measures to assist particular groups in the community who may be disadvantaged. In the present case, older people are more disadvantaged by retrenchment than other people. The provision of additional notice (or payment in lieu of notice) is intended to reduce this disadvantage. 236. These items would ensure ABCC employees are paid out their entitlements, including amounts equivalent to what they would have been entitled to under the Australian Building and Construction Commission Enterprise Agreement 2017-2020 (ABCC EA), thus maintaining existing arrangements for differential treatment of ABCC employees on the basis of age. Fair Work Legislation xliv House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 237. Subitem 319(12) would provide that Part 4 of the Age Discrimination Act 2004 (Age Discrimination Act) does not make anything done in compliance with item 319 unlawful. This could be seen to reduce protections against discrimination. However, subsection 39(8) of the Age Discrimination Act provides that Part 4 of that Act does not make it unlawful for a person to comply with a fair work instrument (within the meaning of the FW Act). The ABCC EA is a fair work instrument and would be excluded from the operation of Part 4. Given subitem 319 seeks to provide the equivalent entitlements as the ABCC EA, it broadly maintains existing arrangements. 238. Actions by a person in accordance with item 319 that are relevant to the Age Discrimination Act would not be unlawful under Part 4 of the Age Discrimination Act because they would constitute positive discrimination under s 33 of that Act as they are intended to reduce a disadvantage experienced by people of a particular age. As such, excluding the operation of Part 4 of the Age Discrimination Act maintains existing exemptions. Prohibiting sexual harassment in connection with work 239. In prohibiting sexual harassment in connection with work, the Bill would provide protection against a form of sex discrimination. While there are existing anti- discrimination mechanisms in Australia that provide a right of recourse to individuals who have been subject to discriminatory behaviour, the Bill would reinforce these protections by explicitly prohibiting sexual harassment in the FW Act. 240. The Bill would also extend access to stop sexual harassment orders to all workers, and also enable prospective workers to seek such orders, subject to existing limitations in relation to the Defence Force, Australia's security agencies and the Australian Federal Police. This would enable all individuals in the world of work, or seeking work, subject to the stated limitations, to stop sexual harassment and prevent further harm or injury. Anti-discrimination and special measures 241. The current anti-discrimination provisions in the FW Act provide protection for the attributes of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin (the protected attributes). This list of protected attributes omits some attributes protected by other Commonwealth anti-discrimination legislation, particularly the SD Act, which additionally protects the attributes of breastfeeding, gender identity and intersex status. 242. Adding breastfeeding, gender identity and intersex status to the list of protected attributes in the FW Act would bring the FW Act into alignment with the SD Act and positively engage the rights to equality and non-discrimination in the context of employment. The inclusion of these new grounds would increase protection for groups that are often the target of discrimination including women and people of intersex House of Representatives xlv Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights status. The definitions of 'breastfeeding', 'gender identity' and 'intersex status' would be modelled on provisions in the SD Act. 243. Part 9 would also amend the FW Act to define special measures to achieve equality as permitted matters in an enterprise agreement. This would enable parties to bargain for terms to be included in an enterprise agreement which have the purpose of achieving equality for employees or prospective employees who have protected attributes. 244. By expressly permitting employers and employees to bargain for terms in enterprise agreements that are intended to accelerate and achieve equal treatment, representation and participation across workforces of employees with a particular protected attribute or a combination of attributes (of the kind mentioned in subsection 195(1)), Part 9 promotes the right to equality and non-discrimination. 245. The note to new section 172A added by Item 428 would make clear that a special measure to achieve equality may be a discriminatory term under section 195 (and therefore be an unlawful term under section 194) to the extent that action may be taken because the term is unlawful under an anti-discrimination law. 246. For example, this Part may permit a term of an enterprise agreement that requires an employer to offer a set number of positions to people with a physical or mental disability. This may be seen to discriminate against applicants who do not have that attribute. However, to the extent that this Part limits the right to equality and non- discrimination, the limitation has a legitimate objective of accelerating or achieving substantive equality for employees with particular attributes who may be underrepresented in particular workforces or face barriers to participating in employment. The primary objective of the measure is to promote equal access to employment activities for this particular cohort of employees. The limitation is therefore reasonable and proportionate. The Part also includes safeguards, including the new subsection 195(6) which confirms that a term of an enterprise agreement ceases to be a special measure to achieve equality after substantive quality for the particular employees has been achieved. Flexible work 247. The Bill would amend Division 4 of the NES, which enables employees to request flexible working arrangements where they fall within certain circumstances set out in the FW Act, including where they are a carer or have a disability (existing paragraphs 65(1A)(b) and (c)). The Bill would support employees in these circumstances to access flexible working arrangements, by strengthening employer obligations when considering an employee's request. By improving the processes for how employers deal with requests for flexible work, the Bill would reduce the risk of discrimination against employees and support employees to engage in work on just and favourable conditions. Fair Work Legislation xlvi House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Supported bargaining 248. The supported bargaining stream promotes the right to equality and non-discrimination by facilitating collective bargaining for employees who face barriers to bargaining, such as workers in low paid occupations, government funded industries, and female dominated sectors. The supported bargaining stream is also intended to facilitate bargaining for employees with a disability, employees who are culturally and linguistically diverse, and First Nations employees who may be employed in such sectors and therefore face additional hurdles. The right of women not to be discriminated against based on gender 249. The CEDAW provides that in relation to discrimination against women, State Parties must: • ensure the effective protection of women against acts of discrimination (Article 2(c)); • ensure the full development and advancement of women (Article 3); and • take all appropriate measures to eliminate discrimination against women in the field of employment to ensure the same rights between men and women (Article 11). This includes the right to equal remuneration, treatment in respect of work of equal value, and evaluation of the quality of work (Article 11(1)(c)). 250. Article 26 of the ICCPR requires State laws to guarantee equal and effective protection against discrimination on a number of grounds, including sex. Objects of the Fair Work Act 251. The Bill would promote Article 11(1) of the CEDAW by requiring the FWC to consider gender equity when performing functions or exercising its powers under the FW Act, including when setting conditions in modern awards and reviewing minimum wages. Under the amendments, the FWC would be required to consider the principles of equal remuneration, address gender-based undervaluation of work and promote fair working conditions for women, in order to prevent discrimination against women in employment. Equal remuneration 252. The amendments to Part 2-7 of the FW Act would provide better guidance on what matters the FWC may consider when deciding whether there is equal remuneration for work of equal or comparable value. The amendments would also reduce the evidentiary burden involved in establishing a case for an ERO, and improve the ability for women to receive equal remuneration for work of equal or comparable value. 253. The amendments to section 157 to explicitly require that the FWC's considerations of work value be free of assumptions based on gender would also positively engage the House of Representatives xlvii Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights rights of women. This measure would ensure that any historical discrimination against women in the evaluation of the quality of work is eliminated from work value cases. Expert panels 254. The amendments to Part 5-1 of the FW Act would promote the right to fair wages and equal remuneration for work of equal value without distinction of any kind by ensuring that matters relating to EROs, award cases in the Care and Community Sector and work value cases that are based on substantive gender pay equity matters are considered by an Expert Panel that includes a majority of members with specialist skills and knowledge. Prohibiting pay secrecy 255. The measures which remove any restrictions on employees disclosing their remuneration, if they wish, would promote the rights of women not to be discriminated against based on gender by assisting women to confirm they are not being paid less than male employees for doing the same job. These measures would also create greater transparency and accountability for employers to eliminate discrimination against women from their workplaces relating to their remuneration and human resources practices. Prohibiting sexual harassment in connection with work 256. The Bill would positively engage the rights of women in work by providing a broad protection against sexual harassment in connection with work. 257. While sexual harassment can affect anyone, as noted in the Respect@Work Report, sexual harassment disproportionately effects women. The amendments to add new Part 3-5A to the Bill would ensure sexual harassment in connection with work is explicitly prohibited under the FW Act and that remedies are available where it occurs. The Bill would also expand access to stop sexual harassment orders to more women by relying on the external affairs power to support the protection in new Part 3-5A and would enable women seeking work to obtain such orders. Anti-discrimination 258. This Part would positively engage the right of women not to be discriminated against based on gender in the context of employment in several ways. 259. Extending the protections from discrimination in the FW Act to include the attribute of breastfeeding would provide protection for women who have to breastfeed or express milk while at work. The amendments would prohibit conduct that results in unfair deprivation of work or discrimination in work, such as denying a person employment or terminating their employment, on the basis of breastfeeding, including, for example, expressing milk at work. Fair Work Legislation xlviii House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights The rights of parents and children 260. Article 3(1) of the CRC provides that the best interests of the child must be a primary consideration in all actions undertaken by legislative bodies. 261. Article 18(1) of the CRC goes on to state that parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of their children. Similarly, Article 5(b) of the CEDAW provides parties shall take measures to promote the recognition of the common responsibility of men and women in the upbringing and development of their children. Flexible work 262. Flexible work arrangements in Division 4 of Part 2-2 of the FW Act support eligible employees to undertake work on a flexible basis, including employees who are providing care to school aged children or returning from a period of parental leave. 263. The Bill would strengthen the obligations of employers to discuss requests for flexible work arrangements with the affected employee, provide reasons for any decision to refuse a request, and inform the employee of any changes to working arrangements that the employer is willing to make. By strengthening the processes surrounding requests for flexible work, the Bill would support working parents to access arrangements that assist them to balance their work and care responsibilities in accordance with Articles 3(1) and 18 of the CRC and Article 5(b) of the CEDAW. Rights of people with disability 264. The CRPD requires countries to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disability, without discrimination of any kind on the basis of their disability. In particular, Article 27 requires that State Parties recognise the right of persons with disabilities to work on an equal basis to others, including the right to just and favourable conditions of work. Special measures 265. Part 9 would amend the FW Act to define special measures to achieve equality as permitted matters in an enterprise agreement. This would enable parties to bargain for terms to be included in an enterprise agreement which have the purpose of achieving equality for employees or prospective employees who have protected attributes. 266. By expressly permitting employers and employees to bargain for terms in enterprise agreements that are intended to accelerate and achieve equal treatment, representation and participation across workforces of employees with a particular protected attribute or a combination of attributes (of the kind mentioned in subsection 195(1)), Part 9 promotes the right to equality and non-discrimination. House of Representatives xlix Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights 267. The note to new section 172A added by Item 428 would make clear that a special measure to achieve equality may be a discriminatory term under section 195 (and therefore be an unlawful term under section 194) to the extent that action may be taken because the term is unlawful under an anti-discrimination law. 268. For example, this Part may permit a term of an enterprise agreement that requires an employer to offer a set number of positions to people with a physical or mental disability. This may be seen to discriminate against applicants who do not have that attribute. However, to the extent that this Part limits the right to equality and non- discrimination, the limitation has a legitimate objective of accelerating or achieving substantive equality for employees with particular attributes who may be underrepresented in particular workforces or face barriers to participating in employment. The primary objective of the measure is to promote equal access to employment activities for this particular cohort of employees. The limitation is therefore reasonable and proportionate. The Part also includes safeguards, including the new subsection 195(6) which confirms that a term of an enterprise agreement ceases to be a special measure to achieve equality after substantive quality for the particular employees has been achieved. Flexible work 269. The Bill would amend Division 4 of the NES, which enables employees with a disability to request flexible working arrangements. The proposed amendments would support employees with a disability to access flexible working arrangements, by strengthening employer obligations when considering an employee's request. By improving the processes for how employers deal with requests for flexible work, the Bill would promote the rights of people with disability to engage in work on just and favourable conditions. Conclusion 270. The Bill is compatible with human rights because it promotes human rights, including civil, political, social, economic and labour rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Minister for Employment and Workplace Relations, the Hon Tony Burke MP Fair Work Legislation l House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Statement of Compatibility with Human Rights Table 1 - Summary of new civil remedy provisions in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 Fair Work Act 2009 Ordinary contravention Serious contravention (civil) (civil) Contravention Individual Body Individual Body Penalty Corporate Penalty Corporate units Penalty units Penalty units units Non-compliance with flexible 60 penalty 300 penalty 600 penalty 3,000 penalty working arrangement provisions units units units units (s 44) Non-compliance with a term of a 60 penalty 300 penalty N/A N/A FWC order made under new units units subsection 65C(1) (s 65C(6)) Non-compliance with a guarantee of 60 penalty 300 penalty 600 penalty 3,000 penalty termination entitlements (s 226A) units units units units Prohibition on pay secrecy terms (s 60 penalty 300 penalty 600 penalty 3,000 penalty 333D) units units units units Limitations on fixed term contracts 60 penalty 300 penalty 600 penalty 3,000 penalty (s 333E(1)) units units units units Failure to provide Fixed Term 60 penalty 300 penalty 600 penalty 3,000 penalty Contract Information Statement (s units units units units 333K) Prohibiting sexual harassment in 60 penalty 300 penalty N/A connection with work (s 527D) units units Contravening a stop sexual 60 penalty 300 penalty N/A harassment order (s 527K) units units Contravening a compensation order 60 penalty 300 penalty N/A in an arbitrated sexual harassment units units dispute (s 527S(4)) Advertising employment with a rate 60 penalty 300 penalty N/A of pay that contravenes the FW Act units units (s 536AA(1)) Advertising piecework without 60 penalty 300 penalty N/A including periodic rate of pay (s units units 536AA(2)) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Non-compliance with obligation 60 penalty 300 penalty N/A to notify employees about units units automatic sunsetting (Schedule 16, item 4C) House of Representatives li Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

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Notes on clauses NOTES ON CLAUSES In these notes on clauses, the following abbreviations are used: Abbreviation Definition AAT Administrative Appeals Tribunal ABCC Australian Building and Construction Commission ABC Commissioner Australian Building and Construction Commissioner ABCC Enterprise Australian Building and Construction Commission Enterprise Agreement Agreement 2017-2020 ABC Inspectors Australian Building and Construction Inspectors Accreditation Scheme Work Health and Safety Accreditation Scheme Accreditation Scheme Building and Construction Industry (Improving Productivity) Rules (Accreditation Scheme) Rules 2019 Act Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 AEC Australian Electoral Commission Age Discrimination Act Age Discrimination Act 2004 AHRC Australian Human Rights Commission AHRC Act Australian Human Rights Commission Act 1986 AI Act Acts Interpretation Act 1901 Amendment Instrument Code for the Tendering and Performance of Building Work Amendment Instrument 2022 APS Australian Public Service ASIS Australian Secret Intelligence Service BCI C&T Act Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 BCIIP Act Building and Construction Industry (Improving Productivity) Act 2016 House of Representatives 1 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Notes on clauses Bill Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 BOOT Better off overall test bridging period Period between 1 July 2009 to 31 December 2009, before the commencement of the BOOT and modern awards Building Code 2016 Code for the Tendering and Performance of Building Work 2016 CEDAW Convention on the Elimination of All Forms of Discrimination Against Women Department Department of Employment and Workplace Relations ERO Equal Remuneration Order FEG Act Fair Entitlements Guarantee Act 2012 FSC Federal Safety Commissioner FSC Act Federal Safety Commissioner Act 2022 FSOs Federal Safety Officers FWC Fair Work Commission FW Act Fair Work Act 2009 FW Inspectors A person appointed as a Fair Work inspector under section 700 of the FW Act; the FWO in their capacity as a Fair Work Inspector under section 701 of the FW Act FWO Fair Work Ombudsman FW Regulations Fair Work Regulations 2009 FW Transitional Act Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 General Manager General Manager of the Fair Work Commission ICCPR International Convention on Civil and Political Rights ICESCR International Convention on Economic, Social and Cultural Rights Fair Work Legislation 2 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Notes on clauses Independent Independent Contractors Act 2006 Contractors Act ILO International Labour Organisation Legislation Act Legislation Act 2003 Minister Minister for Employment and Workplace Relations NERR Notice of employee representational rights NES National Employment Standards PAB Protected action ballot PAB agent Protected action ballot agent PABO Protected action ballot order PGPA Act Public Governance, Performance and Accountability Act 2013 President President of the Fair Work Commission PS Act Public Service Act 1999 Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014 Respect at Work Act Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 Respect@Work Report Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020) by the Australian Human Rights Commission RO Act Fair Work (Registered Organisations) Act 2009 RO Amendment Act Fair Work (Registered Organisations) Amendment Act 2016 ROC Registered Organisations Commission RO Commissioner Registered Organisations Commissioner SD Act Sex Discrimination Act 1984 Senate Unlawful Senate Economics References Committee inquiry into Unlawful Underpayments Inquiry underpayment of employees' remuneration SES Senior Executive Service House of Representatives 3 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Notes on clauses SRC Act Safety, Rehabilitation and Compensation Act 1988 Transitional Rules Building and Construction Industry (Consequential and Transitional Provisions) Rules 2016 WHS Act Work Health and Safety Act 2011 Working Group Security of Payments Working Group Clause 1: Short title 1. This is a formal provision specifying the short title of the Act. Clause 2: Commencement 2. The table in this clause sets out when the provisions of the Bill commence. Clause 3: Schedule 3. This clause gives effect to the provisions in the Schedule to the Bill. Fair Work Legislation 4 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission PART 1--ABOLITION OF THE REGISTERED ORGANISATIONS COMMISSION Overview Part 1 consists of three divisions. 4. Division 1 of Part 1 sets out the provisions which would abolish the ROC and the role of the RO Commissioner. The functions of the RO Commissioner would be taken over by the General Manager. There is also a requirement for the General Manager to seek to embed within organisations a culture of good governance and voluntary compliance with the law. 5. Division 1 of Part 1 also sets out the General Manager's functions and reporting requirements and provides for Ministerial directions. 6. Division 2 of Part 1 sets out the consequential provisions that arise from the amendments made in Part 1, and transitional provisions for amendments that would be made by this Schedule to the Bill. 7. Division 3 of Part 1 sets out the application, saving and transitional provisions that arise from the amendments made in Part 1. Division 1--Main amendments Amendments to the Fair Work Act 2009 Item 1: Subsection 652(1) (at the end of note 2) 8. Subsection 652(1) of the FW Act requires the President to prepare a report on the operations of the FWC after the end of each financial year. Note 2 of subsection 652(1) notes that the report prepared by the General Manager and given to the Minister under section 46 of the PGPA Act may be included in the President's annual report prepared under section 652. 9. This item would be a consequential amendment to note 2 in subsection 652(1) to reflect item 6, which sets out additional requirements for the annual report prepared by the General Manager. Item 2: Subsection 657(1A) (note) Item 3: At the end of subsection 657(1A) 10. Subsection 657(1A) of the FW Act provides that the General Manager has functions conferred by him or her by a fair work instrument and by a law of the Commonwealth. These items are consequential amendments to the note in subsection 657(1A) to reflect item 6, which provides functions of the General Manager under the RO Act. House of Representatives 5 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 4: At the end of section 658 11. Section 658 restricts the power of the FWC President under section 582 of the FW Act to direct the General Manager. This item adds the General Manager's performance of functions or exercise of powers under the RO Act to the range of matters about which the President may not direct the General Manager. Amendments to the Fair Work (Registered Organisations) Act 2009 Item 5: Section 317 Item 6: Part 3A of Chapter 11 12. Part 3A of Chapter 11 of the RO Act was introduced by the RO Amendment Act and established the ROC, established the RO Commissioner, provided for terms and conditions of appointment and made provision for staff to assist the RO Commissioner. Part 3A also established the ROC Special Account. 13. These items repeal Part 3A of Chapter 11 of the RO Act as introduced by the RO Amendment Act and replace the description of Part 3A as introduced by that Act with a description of the new Part 3A that would be included in the RO Act by the Bill. Part 3A--Functions of General Manager Section 329A--Functions of the General Manager 14. This subitem would set out the functions of the General Manager. 15. The functions of the General Manager mirror the repealed functions of the RO Commissioner with some exceptions. The new subsection 329A(1) does not include a paragraph allowing other functions to be conferred on the General Manager by the RO Act or another Act (as such a paragraph is already found in s 657 of the FW Act), and includes a new subsection 329A(2). 16. The broad functions of the General Manager are to promote the efficient management of organisations and high standards of accountability of organisations and their office holders to their members and to promote compliance with financial reporting and accountability requirements of the RO Act, including by providing education, assistance and advice to organisations and their members. 17. The General Manager would also have the function of monitoring acts and practices of registered organisations and their office holders to ensure they comply with the provisions of the RO Act. 18. New subsection 329A(2) would provide in relation to the functions of the General Manager that the General Manager must seek to embed a culture of good governance and voluntary compliance with the law within organisations. This would ensure that the General Manager considers education when performing functions under the RO Act. Fair Work Legislation 6 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Section 329B--Directions from the Minister 19. This subitem would allow the Minister to give written directions to the General Manager about the performance of the General Manager's functions under the RO Act. This subitem mirrors the repealed section 329FA in relation to the RO Commissioner. 20. This subitem would replace the repealed section 329FA. It appears to be narrower because this subitem relates to the General Manager's functions under the RO Act while the repealed section 329FA related to the RO Commissioner's functions broadly, but the proposed provision is broader than repealed section 329FA as directions from the Minister would apply to all the General Manager's functions under the RO Act after commencement, not just those transferred from the ROC. 21. The note to this subitem identifies that a direction by a Minister is not subject to the disallowance and sunsetting provisions of the Legislation Act. This is because sections 9(2) and 11(3) of the Legislation (Exemptions and Other Matters) Regulation 2015 provide for a class exemption from disallowance and sunsetting, respectively, for directions by a Minister to any person or body. Section 329C--Minister may require reports 22. This subitem would replace the repealed section 329FB which provides for the Minister to direct, in writing, the General Manager to give the Minister specified reports. It is broadly the same as repealed section 329FB, other than updating references from the RO Commissioner to the General Manager. 23. Proposed subsection 329C(3) notes that the direction or report, if made in writing, is not a legislative instrument. This is intended to assist readers, as the direction or report is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act. Such a direction or report is administrative in nature as it merely applies the law to a particular circumstance of person rather than determining the content of the law. The provision is declaratory of the law, rather than prescribing a substantive exemption from the requirements of the Legislation Act. Section 329D--Annual report 24. This subitem would provide for the sorts of information to be included the General Manager's report for PGPA Act purposes. The prescribed information is in relation to investigations and education activities undertaken by the General Manager under the RO Act. The proposed section 329D would replace the repealed section 329FC and is broadly the same other than updating references from the RO Commissioner and the FWO to the General Manager. 25. The report is published alongside the report on FWC operations prepared by the President under section 652 of the FW Act. House of Representatives 7 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission 26. In the initial report, the General Manager would be responsible for covering the full reporting period for transferred ROC functions, even if the functions had not been transferred for the full period. Division 2--Consequential amendments Amendments to the Fair Work Act 2009 Item 7: Paragraph 604(1)(b) 27. Section 604 of the FW Act provides for an appeal to the Full Bench of the FWC in relation to certain decisions of the FWC or in relation to decisions made by the General Manager or the RO Commissioner under the RO Act, with the permission of the FWC. This item would have the effect that decisions of the General Manager (or a delegate), and no longer the decisions of the RO Commissioner (or a delegate), may be appealed to the Full Bench of the FWC, with the permission of the FWC. Item 8: Subsection 607(1) 28. Section 607 of the FW Act sets out the process of appealing or reviewing decisions. This item would have the effect that decisions of the FWC or the General Manager, and no longer the decisions of the RO Commissioner, may be heard or conducted without holding a hearing only in the circumstances stated in that section. Item 9: Subparagraph 613(2)(a)(ii) Item 10: Subparagraph 613(2)(a)(iii) 29. Section 613 of the FW Act provides for the manner in which appeals of decisions are made by the FWC. These items would amend subsection 613(2) to no longer allow the President, a Vice President or a Deputy President (directed by the President) to decide under section 604 whether to grant permission to appeal against a decision of the RO Commissioner (or a delegate) under the RO Act. Item 11: At the end of section 696 30. This item would amend the FW Act to provide that the FWO is a listed entity for the purposes of the finance law, instead of the FWO and ROC being a combined listed entity. Amendments to the Fair Work (Registered Organisations) Act 2009 Item 12: Section 6 (paragraph (a) of the definition of authorised official) 31. This item would remove the RO Commissioner from the definition of authorised official. Item 13: Section 6 32. This item would repeal the definitions of ROC and RO Commissioner. Fair Work Legislation 8 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 14: Subsection 28(1A) Item 15: Subsection 28(1A) (note) 33. Subsection 28(1A) enables the RO Commissioner to apply to the Federal Court for an order cancelling the registration of an organisation in certain circumstances. This item would replace references to the RO Commissioner with references to the General Manager. Item 16: Paragraph 94A(4)(c) 34. Section 94A allows the FWC to accept an application made under section 94 for a ballot in relation to a constituent part withdrawing from an organisation after the end of the five year period specified in section 94. This item would replace the reference to the Commissioner with a reference to the General Manager in the list of persons who may make submissions to the FWC on the relevant matters the FWC must have regard to in considering whether it is appropriate to accept the application. Item 17: Subsection 95(3A) Item 18: Paragraph 95(3A)(a) Item 19: Subsections 95(3B) and (3C) 35. Section 95 requires that an application to the FWC for a ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, must be accompanied by a written proposal for the withdrawal. 36. Subsection 95(3A) allows the applicant to request the General Manager or the RO Commissioner to either give, or direct the amalgamated organisation to provide, certain information. Subsections 95(3B) and (3C) permit the General Manager or the RO Commissioner to provide the information and require an amalgamated organisation to comply with the General Manager or the RO Commissioner's direction respectively. 37. These items would amend subsections 95(3A), (3B) and (3C) to repeal these powers and obligations in respect of the RO Commissioner. Item 20: Subsection 95A(7) Item 21: Paragraph 95A(7)(a) Item 22: Subsections 95A(8) and (9) 38. Section 95A requires that an application to the FWC for a ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, must be accompanied by a statement of the name and a copy of the rules proposed for the organisation that the constituent part is to be registered as and proposed for the amalgamated organisation when the withdrawal for amalgamation takes effect. House of Representatives 9 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission 39. Subsections 95A(7), (8) and (9) permit the General Manager or the RO Commissioner to provide an applicant all information in the General Manager or the RO Commissioner's possession and require an amalgamated organisation to comply with the General Manager or the RO Commissioner's direction respectively to provide the applicant all information in possession of the organisation, that may be relevant in the preparation of the statement of the name and copy of the rules. 40. These items would amend subsections 95A(7), (8) and (9) to repeal these powers and obligations in respect of the RO Commissioner. Item 23: Paragraph 102(1A)(a) 41. This item would be a consequential amendment to reflect the change made by item 26. Item 24: Subsection 183(1) Item 25: Subsection 183(4) Item 26: Subsection 184(2) 42. Subsection 183(1) allows a committee of management of an organisation, or branch of an organisation, to apply to the RO Commissioner for an exemption from the requirements of subsection 182(1) in relation to elections for offices. Subsection 183(4) requires the RO Commissioner to give notice of this application to the members of the organisation or branch concerned. 43. Subsection 184(2) requires the RO Commissioner to hear these applications and any objections made by relevant members. 44. These items would amend subsection 183(1) by replacing references to the RO Commissioner with references to the FWC and amend subsections 183(4) and 184(2) by replacing references to the RO Commissioner with references to the General Manager. Item 27: Section 186 (heading) Item 30: Section 189 (heading) Item 37: Section 202 (heading) Item 48: Section 207 (heading) Item 55: Section 235 (heading) Item 57: Section 236 (heading) Item 67: Section 255B (heading) Item 71: Section 255D (heading) Fair Work Legislation 10 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 74: Section 255F (heading) Item 80: Section 255L (heading) Item 98: Section 272 (heading) Item 106: Section 293M (heading) Item 112: Section 330 (heading) Item 114: Section 331 (heading) Item 129: Subsection 336(1) (heading) Item 131: Subsection 336(1A) (heading) Item 133: Subsection 336(2) (heading) Item 136: Section 337 (heading) 45. These items would replace references to the RO Commissioner in the relevant section and subsection headings with references to the General Manager to reflect that the functions described are now functions of the General Manager. Item 52: Section 233 (heading) Item 88: Section 268 (heading) 46. These items would replace references to the RO Commissioner in the relevant section headings with references to the FWC to reflect that the functions described are now functions of the FWC. Item 28: Subsections 186(1) and (2) Item 29: Subsection 187(3) Item 31: Subsection 189(1) Item 32: Subsection 189(2) Item 34: Paragraph 192(2)(b) Item 35: Paragraph 197(1)(a) Item 36: Subparagraph 198(6)(b)(i) Item 38: Subsection 202(1) Item 39: Subsection 202(2) Item 40: Paragraph 202(2)(b) House of Representatives 11 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 41: Paragraph 202(2)(c) Item 42: Paragraph 202(2)(e) Item 43: Paragraph 202(5)(b) Item 44: Paragraph 203(6)(c) Item 45: Paragraph 206(4)(c) Item 49: Section 207 Item 50: Subsection 215(5) 47. These items would replace references to the RO Commissioner with references to the General Manager or the FWC as the case may be to reflect that the functions described in relation to the conduct of elections for office and other positions are now functions of the General Manager or the FWC as the case may be. Item 33: Subsection 189(3) 48. This item repeals and replaces subsection 189(3) with the effect that where prescribed information in relation to an election is lodged with the FWC and the General Manager is satisfied that an election is required under the rules of an organisation or branch, and other requirements are met, the General Manager must arrange for the election by the AEC. Item 44: Subsection 203(1) Item 45: Paragraph 203(6)(b) 49. These items replace components of section 203, in relation to the issue and return of identity cards issued to officials to whom powers under section 202 to inspect or take other actions in relation to election documents have been delegated, with the effect that references to RO Commissioner are replaced by references to General Manager, as appropriate. Item 51: Section 229 Item 53: Subsections 233(1) and (2) Item 54: Subsections 234(3) and (4) Item 56: Subsection 235(1) Item 58: Subsections 236(1) to (5) Item 59: Subsection 237(1) Item 60: Subsections 237(2) and (4) Fair Work Legislation 12 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission 50. These items would replace references to the RO Commissioner with references to the General Manager or the FWC as the case may be to reflect that membership records and lists of office holders, along with details of some types of loans, grants and donations made by the organisation, are now required to be lodged by organisations with the FWC and the functions described in relation to those lodgements are now functions of the General Manager. Item 61: Subsections 241(1) and (2) Item 63: Subsection 255(1) Item 64: Subsection 255(4) Item 65: Subsection 255A(1) Item 66: Paragraph 255A(2)(a) Item 68: Subsections 255B(2) and (3) Item 69: Paragraph 255C(1)(b) Item 70: Subsection 255C(2) Item 72: Subsections 255D(1) and (2) Item 73: Subsections 255E(2) to (4) Item 75: Subsection 255F(1) Item 76: Subparagraph 255F(2)(b)(i) Item 77: Subsections 255G(1) to (4) Item 78: Section 255H Item 79: Sections 255J and 255K Item 81: Subsections 255L(1) and (2) Item 82: Paragraph 255N(2)(a) Item 83: Subsection 256A(2) Item 84: Subsection 257(11) Item 85: Subsection 261(2) Item 86: Subsection 265(5) Item 87: Subsection 266(1) House of Representatives 13 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 89: Section 268 Item 90: Section 268 Item 91: Paragraph 269(2)(a) Item 92: Paragraph 269(2)(c) Item 93: Subsection 270(1) Item 94: Paragraph 270(3)(c) Item 95: Subsection 270(7) Item 96: Subsection 270(7) Item 97: Subsections 271(1) and (3) Item 99: Subsections 272(1) and (4) Item 100: Subsection 278(2) 51. These items would replace references to the RO Commissioner with references to the General Manager or the FWC as the case may be to reflect that the functions described in relation to the requirements that are placed on organisations in relation to accounts and audit are now functions of the General Manager or the FWC, as the case may be. Item 62: Subsections 246(3), 247(1A) and 249(5A) and (6A) 52. This item would repeal the requirement of the General Manager to consult with the RO Commissioner in satisfying him or herself of matters relating to the determination of reporting units within an organisation for the purposes of issuing or revoking a certificate under section 245. Item 101: Subsection 293H(1) Item 102: Subsections 293H(3), (4), (6) and (7) Item 103: Subparagraphs 293J(1)(b)(ii) and (2)(b)(ii) Item 104: Paragraph 293K(1)(a) Item 105: Subsection 293L(1) Item 107: Subsections 293M(1) to (3) 53. These items would replace references to the RO Commissioner with references to the General Manager or the FWC as the case may be to reflect that the functions described in relation to disclosure obligations, restrictions on taking part in making decisions, Fair Work Legislation 14 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission officer and related party disclosure statements and training in relation to financial duties are now functions of the General Manager or the FWC as the case may be. Item 108: Paragraphs 310(1)(a) and (b) 54. Section 310 sets out who may apply for an order in relation to contraventions of civil penalty provisions. 55. This item would allow the General Manager (or a person authorised in writing by the General Manager), and no longer the RO Commissioner (or a person authorised in writing by the RO Commissioner), to apply for a civil penalty or other order under Part 2 of Chapter 10 of the RO Act, but does not otherwise affect standing in relation to the relevant provisions. Item 109: Subsection 329G(1) Item 110: Subsection 329G(2) Item 111: Paragraph 329G(2)(a) 56. Section 329G sets out when specified information may be disclosed. 57. These items would set out when the General Manager, and no longer the RO Commissioner, may disclose information. Item 113: Subsections 330(1) and (2) Item 115: Subsections 331(1) to (4) Item 116: Subsection 332(1) Item 117: Paragraph 332(1)(a) Item 118: Paragraph 332(1)(b) Item 119: Subsections 332(2) and (3) Item 120: Subsection 333(1) Item 121: Subsection 333(1) Item 122: Subsections 333(2) and (3) Item 123: Section 334 Item 124: Subsections 335(1) and (2) Item 125: Section 335B Item 126: Paragraph 335E(2)(b) House of Representatives 15 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 127: Subsection 335K(1) Item 128: Subsection 335N(8) Item 130: Subsection 336(1) Item 131: Subsection 336(1A) Item 134: Subsection 336(2) Item 135: Subsections 336(3) and (5) Item 137: Subparagraphs 337(1)(a)(ii) and (iii) Item 138: Paragraph 337(1)(c) Item 139: Subsection 337AC(1) Item 140: Paragraphs 337AM(a) and (b) Item 141: Subsections 337AP(1) and (2) 58. These items would replace references to the RO Commissioner with references to the General Manager or the FWC to reflect that the functions described in relation to inquiries and investigations are now functions of the General Manager or the FWC as the case may be. Item 142: Subparagraph 337A(1)(b)(ia) Item 143: Paragraph 337BB(4)(b) 59. These items would repeal references to the RO Commissioner in relation to persons to whom a protected disclosure may be made under the RO Act protected disclosures provisions and persons who may make an application to a court in relation to actual or threatened reprisal action. Item 144: Subsection 337CB(2) Item 145: Paragraph 337CB(2)(a) Item 146: Paragraph 337CB(3)(a) 60. These items would replace references to the RO Commissioner with references to the General Manager to reflect that the functions described in relation to protection for whistleblowers are now functions of the General Manager. Fair Work Legislation 16 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 147: Paragraph 337CC(2)(b) 61. This item would replace a reference to the RO Commissioner with a reference to the General Manager in relation to regulations that may prescribe information of a decision not to investigate a protected disclosure. Item 148: Paragraph 337K(3)(a) 62. This item would provide that the General Manager need no longer provide a copy of an order under the FW Act to the RO Commissioner. Item 149: Paragraph 343A(2)(b) Item 150: After paragraph 343A(2)(b) Item 151: After paragraph 343A(2)(h) Item 152: Paragraph 343A(3)(aa) Item 153: After paragraph 343A(3)(c) Item 154: Paragraph 343A(3)(h) Item 155: After subsection 343A(3) Item 156: Section 343B 63. These items would provide for the delegation of certain of the General Manager's powers and functions under the RO Act. 64. Some delegation powers would be unrestricted. This is due to the size of the Registered Organisations function and the staffing profile of the FWC, which has limited SES staff. 65. The power to delegate functions and powers under Division 3 of Part 4 (questioning on oath or affirmation) would be limited by item 154 to a member of the staff of the FWC who is an SES employee. This aligns the policy on questioning powers with those of the FWO. 66. The power to disclose, or authorise the disclosure of information, is restricted to the General Manager only. 67. Item 155 would repeal section 343B in relation to the delegation of the RO Commissioner's powers and functions. Item 157: Paragraph 347(1)(c) Item 158: Section 348 Item 159: Section 349 House of Representatives 17 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 160: Section 349 68. These items would omit references to the RO Commissioner or replace references to the RO Commissioner with references to the FWC or the General Manager, as the case may be, in relation to providing copies of rules or lists of officers, certificates as to membership of an organisation and certifications of lists of officers as evidence of persons named being officers. Division 3--Application, saving and transitional provisions Item 161: Definitions 69. This item would include definitions for the purpose of this Division. The commencement of the Division is the same as for Division 1. Item 162: Acts Interpretation Act 1901 70. This item would specify the application of section 7 of the AI Act, which is concerned with the effect of repeal, or amendment, of an Act. It would remain unaffected despite provision being made for application, saving and transitional provisions in this Division. Item 163: General Manager can require information 71. This item would enable the General Manager to request the disclosure of certain information from the RO Commissioner before the commencement time, to assist with the proposed transfer of functions under the RO Act to the General Manager. 72. This reflects the intention that all information acquired by the RO Commissioner or a member of their staff in the performance or exercise of functions or powers under the RO Act before the commencement time should be able to be disclosed to the General Manager. Item 164: General Manager to complete certain processes 73. This item would enable the General Manager to complete processes (including, but not limited to, investigations or inquiries) under the RO Act, that were started by the RO Commissioner but incomplete at the time of the commencement. It would remove the need for the General Manager or their staff to restart (or require others to restart) any such incomplete processes. 74. This provision could apply, for example, where an application has been made to the RO Commissioner, or a report submitted, but a response or determination etc. (if required) has not been made by the RO Commissioner by the commencement time. Fair Work Legislation 18 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 165: General Manager substituted as party to proceedings 75. This item would facilitate or enable the continuance of any court or tribunal proceedings that the RO Commissioner is party to at the commencement time, by substituting the General Manager for the RO Commissioner as party to the proceedings. Item 166: Conduct, events or circumstances occurring before the commencement time 76. This item would make clear that the General Manager may exercise their functions and powers under the RO Act in relation to pre-commencement conduct, events or circumstances (e.g., suspected non-compliance with the RO Act that occurred before the commencement). Item 167: Extensions, exemptions, certificates, instruments, authorisations, approvals and requests 77. This item would allow for the continued operation, after the commencement, of: • the specified extensions, exemptions, certificates, instruments, authorisations and approvals issued or made by the RO Commissioner; and • any specified requests made by or to the RO Commissioner that require a response or action. 78. This item supplements, and does not limit, item 164, which enables the continuance of incomplete processes under the RO Act (subitem 167(9)). 79. These things are subject to variation, revocation etc. by the General Manager after the commencement, as provided for under the RO Act or the AI Act. 80. The affected things are: • any extension of time granted by the RO Commissioner under the RO Act (subitem 167(1)); • an exemption in relation to elections (subsection 186(1)) or financial training requirements (section 293M); or a permission to keep records at specified premises (subsection 234(4)) (subitem 167(2)); • an auditor registration certificate (section 255F) (subitem 167(3)); • a certificate as to the membership of an organisation (section 348) (subitem 167(4)); • reporting guidelines (section 255) (subitem 167(5)); • an exemption from certain Australian Accounting Standards (subsection 241(1)); a 'significant role in audit' declaration (subsection 256A(2)); an order for an alternative disclosure arrangement (subsection 293H(3)) (subitem 167(6)); House of Representatives 19 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission • an approval of training in relation to financial duties (subsection 293L(1)) (subitem 167(7)); and • a request for action following an investigation (paragraph 336(2)(a)) (subitem 167(8)). Item 168: Things given to the Commissioner before the commencement time 81. This item would provide for the continued use of certain documents and information given to the RO Commissioner before the commencement, by the General Manager or their staff in particular contexts. These provisions supplement the AI Act and other transitional arrangements provided for under this Part and should be read together with them. 82. Specific transitional provisions are proposed to provide additional clarity about the operation of certain provisions, where there may be some doubt about their practical operation in the transitional context. This item should not be taken to limit other legitimate uses of the specified documents and information by the General Manager or their staff under the RO Act. 83. The following table sets out the affected classes of documents and information that were given to the RO Commissioner and explains their proposed continued use in the specified contexts, after the commencement. Document or information type--given to Proposed continuing use after the RO Commissioner commencement Information in relation to an election to be The Information is taken to have been lodged conducted by the AEC (subsection 189(1)) with the FWC for purposes of decision- making under subsection 189(3) A copy of a document referred to in A copy may be provided to a member of the section 236 relevant organisation under subsection 236(5) Certification (by a specified authority or Certification may be used to determine institution) of a course of study in whether the relevant criterion in accountancy or commercial law, as paragraph 255C(1)(b) is met specified (paragraph 255C(1)(b)) A copy of audited accounts previously also A reporting unit is taken to satisfy the lodged with the relevant State authority reporting requirements under section 269 if it (paragraph 269(2)(c)) has (among other things) lodged a copy of the audited accounts Fair Work Legislation 20 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Documents referred to in section 268 A Document may trigger a new investigation or process referred to paragraph 332(1)(a) or subsection 333(1) Statement about certain loans, grants or A Statement may be inspected under donations lodged under subsection 237(1) subsection 237(4) Document prepared and lodged by an Defamation proceedings may not be brought auditor of a reporting unit in course of if the Document is published, subject to statutory duties under the RO Act limited exceptions (subsection 261(2)) Documents lodged in accordance with A Document may trigger an investigation or subsection 270(7) process under sections 332 or 333 Information acquired by the regulator or The Information is subject to disclosure under their staff in the performance of their section 329G functions or powers under the RO Act List of officers of an organisation or a A List is evidence that the persons named in branch of an organisation (or any certified the list were on the day when the list was copy) lodged on behalf of the organisation lodged, officers of the organisation or branch Item 169: Other matters 84. This item would, subject to the necessary changes, preserve certain arrangements put in place by the RO Commissioner, subject to any changes that the General Manager may make afterwards (i.e., under the RO Act or the AI Act). They include arrangements for the: • suspension of the registration of a person as an auditor for a period wholly or partly after the commencement time, and cancellation of the registration of a person as an auditor (subitems 169(1) and (2)); and • engagement of consultants under section 329CC (subitems 169(3) and (4)). 85. This item would also provide for: • the continued protection of 'protected disclosures' made to the RO Commissioner, despite the repeal of subparagraph 337A(1)(b)(ia) (subitem 169(5)); and • after the commencement--the transfer of any records or documents that were in the possession of the RO Commissioner immediately before the commencement time (subitems 169(6) and (7)). House of Representatives 21 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 1 - Abolition of the Registered Organisations Commission Item 170: Transitional rules 86. This item would provide the Minister with a rule-making power for transitional matters relating to repeals or amendments made by made by this Part or the enactment of this Part. Rules could be made to have retrospective effect on the operation of the repealed provisions of the RO Act. 87. This rule-making power, including the ability to make retrospective rules, would be necessary to provide the Minister with the discretion and flexibility to set out matters, processes, and circumstances not provided for in the Part. This flexibility would allow the Commonwealth to deal with any unforeseen developments that could require immediate or prompt changes. This is particularly important to ensure a smooth transition. Any rules would not be exempt from disallowance under the Legislation Act and would therefore be subject to Parliamentary scrutiny. Any rules would also not be exempt from the sunsetting regime. 88. While the rules could be made to have retrospective application, item 170 would prescribe a limit on the transitional rules which could be made and sets out the things the rules may not do (e.g., create and offence or civil penalty). Additionally, item 170 would make clear that if the rules are made with retrospective commencement, a person could not be convicted of an offence or ordered to pay a pecuniary penalty in relation to conduct before the registration date. As such, the rules would not be able to detrimentally affect any persons due to their retrospective application. Fair Work Legislation 22 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 2 - Additional registered organisations enforcement options PART 2--ADDITIONAL REGISTERED ORGANISATIONS ENFORCEMENT OPTIONS Amendments to the Fair Work (Registered Organisations) Act 2009 Overview 89. Part 2 sets out the standardised provisions relating to an infringement notices and enforceable undertakings scheme in relation to registered organisations, in line with the Regulatory Powers Act. 90. The Regulatory Powers Act contains a standard suite of investigative, compliance monitoring and enforcement powers which may be applied to other Commonwealth laws. These standard provisions are intended to be an accepted baseline of powers required for an effective monitoring, investigation or enforcement regulatory regime, providing adequate safeguards and protecting important common law privileges. For the Regulatory Powers Act to apply, its powers must be 'triggered' by another Act, with or without modification. 91. The RO Act pre-dates the Regulatory Powers Act and has not been amended to trigger any of its standard suite of powers. While the current regulator of the RO Act has general powers to undertake investigations to secure compliance with the RO Act, they do not have many of the compliance and enforcement tools that comparable Commonwealth regulators have. The current regulator has few options to address suspected instances of non-compliance under the RO Act, between seeking voluntary compliance and litigation. The proposed measures in this Part would trigger the infringement notice and enforceable undertaking schemes under the Regulatory Powers Act, to provide the new regulator with two additional enforcement tools. 92. This measure would expand the agency's powers and bring them closer into line with that of other comparable Commonwealth regulators. With more enforcement tools to choose from, the new regulator would have a greater ability to choose an appropriate enforcement tool to match the circumstances of each case. This would enable them to take a measured and proportionate approach to address suspected non-compliance under the RO Act, depending on the circumstances of each case. Item 171: Section 6 93. This item would define the term 'Regulatory Powers Act' to mean the Regulatory Powers (Standard Provisions) Act 2014. Item 172: At the end of Chapter 1 94. This item would insert new section 16 at the end of Chapter 1 of the RO Act, so the relevant provisions of the Regulatory Powers Act (i.e., relating to infringement notices and enforceable undertakings) may be triggered. House of Representatives 23 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 2 - Additional registered organisations enforcement options 95. New section 16 would deem an offence or civil remedy provision under the RO Act to be a 'conduct provision' for purposes both Acts, so that the Regulatory Powers Act may be triggered in relation to all appropriate contraventions of the RO Act. 96. The Regulatory Powers Act operates in relation to provisions that describe the conduct that is required or prohibited (i.e., conduct provisions), but some provisions in the RO Act (which pre-dates the Regulatory Powers Act) are not drafted in that way. The proposed measure would ensure that the Regulatory Powers Act may be triggered in relation to all appropriate contraventions of the RO Act, irrespective of drafting style. Item 173: Chapter 10 (heading) 97. This item would replace the heading to Chapter 10 from 'Civil Penalties' to 'Compliance and enforcement' to reflect the proposed expanded scope of the Chapter. Item 174: Section 304 98. This item would insert an updated simplified outline for the Chapter. Item 175: Part 2 of Chapter 10 (heading) 99. This item would replace the current heading of Part 2 of Chapter 10 with a simpler heading. Item 176: At the end of Chapter 10 100. This item would insert new Parts 3 and 4 at the end of Chapter 10, to make provision for infringement notices and enforceable undertakings. 101. New Part 3 would establish an infringement notice scheme for the RO Act (new sections 316A and 316B). A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against them for the contravention. Part 3--Infringement notices Section 316A--Basic provisions for infringement notices under Part 5 of the Regulatory Powers Act 102. New section 316A would trigger the standard provision of Part 5 of the Regulatory Powers Act. This makes provision for an infringement notice scheme, setting out matters such as: • when an infringement notice may be given; • matters to be included in infringement notice; • circumstances in which time may be extended for the person to pay the amount in the infringement notice; and • the effect of payment of the amount. Fair Work Legislation 24 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 2 - Additional registered organisations enforcement options 103. New subsection 316A(1) would enable infringement notices to be issued for contraventions of the provisions listed in the subsection. 104. In line with the Attorney-General Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, infringement notices would be used to deal with less serious and less factually complex contraventions of the RO Act, where initiating court proceedings would be disproportionately costly. 105. New subsection 316A(2) would enable an infringement notice scheme to be established for contraventions of certain regulations (i.e., to be specified in the regulations, being limited to contraventions of strict liability offences or civil penalty provisions only). 106. New subsections 316A(3) and (4) specify the persons who would be infringement officers and the relevant chief executive officer for purposes Part 5 of the Regulatory Powers Act. 107. New subsection 316A(5) would provide for the delegation of the relevant chief executive's powers and functions under Part 5 of the Regulatory Powers Act. The chief executive (i.e., General Manager) would be able to delegate these powers and functions to a member of staff who is and SES employee or acting SES employee. 108. New subsection 316A(6) would require such a delegate to comply with any directions of the relevant chief executive (i.e., General Manager). 109. New subsection 316(7) would exclude contraventions that attract a penalty for a 'serious contravention' from the infringements notice scheme, consistent with the policy that serious contraventions should not be covered by infringement notice schemes. Section 316B--Appointment of infringement officers 110. New section 316B would provide a process for the appointment of infringement officers, and provide for both general and directions be given by the General Manager to infringement officers. The RO Act does not provide the regulator with a conventional, separately identifiable inspectorate (i.e., comprised of inspectors appointed under the RO Act). The proposed provision would provide a transparent process for the appointment of infringement officers, and enable directions to be given to them by the General Manager to promote consistency in decision making and fairness in the administration of the infringement notice scheme. Part 4--Enforceable undertakings Section 316C--Enforceable undertakings 111. New section 316C would trigger the standard provision of Part 6 of the Regulatory Powers Act, which makes provision for enforceable undertakings. This would empower the General Manager to accept a written undertaking by a person that they will either: • take specified action in order to comply with the RO Act; House of Representatives 25 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 2 - Additional registered organisations enforcement options • refrain from taking specified action in order to comply with the RO Act; and • take specified action directed towards ensuring that they do not contravene a provision under the RO Act, or are unlikely to contravene such a provision in the future. 112. An enforceable undertaking may be varied or withdrawn with the consent of the General Manager, or cancelled by the General Manager. 113. New subsection 316C(1) would make any provision of the RO Act subject to the enforceable undertakings regime in Part 6 of the Regulatory Powers Act. 114. New subsection 316C(2) would make the General Manager the 'authorised person' for purposes of Part 6 of the Regulatory Powers Act. 115. New subsection 316C(3) would make the General Manager's powers under Part 6 of the Regulatory Powers Act delegable to a member of the staff of the FWC who is an SES employee or an acting SES employee. 116. New subsection 316C(4) would specify the 'relevant courts' for Part 6 of the Regulatory Powers Act. 117. New subsection 316C(5) would empower the General Manager to (at their discretion) publish an enforceable undertaking given under the relevant provision. Item 177: Application provision--infringement notices 118. This item would apply the new infringement notice scheme to any alleged contravention of a specified provision, whether occurring before, on or after the commencement of the scheme. Fair Work Legislation 26 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission PART 3--ABOLITION OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION Division 1 - General amendments Amendments to the Building and Construction Industry (Improving Productivity) Act 2016 Item 178: Section 3 119. This item would repeal and replace the main object of the BCIIP Act with a new object - 'to promote work health and safety in relation to building work undertaken by a constitutional corporation, the Commonwealth or a corporate Commonwealth entity'. The new object would reflect the purpose of the legislation which establishes the functions and powers of the FSC. Item 179: Section 4 (paragraph beginning "This Act") Item 180: Section 4 (paragraph beginning "The Australian Building and Construction Commissioner") Item 181: Section 4 (paragraph beginning "Unlawful industrial action") Item 182: Section 4 (paragraph beginning "The ABC Commissioner, inspectors") Item 183: Section 4 (paragraph beginning "The ABC Commissioner, inspectors") Item 184: Section 4 (paragraph beginning "Inspectors and") Item 185: Section 4 (paragraph beginning "The ABC Commissioner can") 120. These items would amend section 4 of the BCIIP Act, which provides the simplified outline, to reflect changes to the purpose and functions of the legislation that would be made by Part 3. 121. References to the ABC Commissioner, the ABCC and its staff, ABC Inspectors, and the power to regulate certain conduct of building industry participants would be removed. 122. The updated version of section 4 would only refer to matters that would be covered by the FSC Act including the functions of the FSC, FSOs and the Accreditation Scheme. These functions would include powers of FSOs to obtain information and to enter premises for certain purposes. Item 186: Section 5 Item 187: Section 5 (paragraph (a) of the definition of authorised applicant) Item 188: Section 5 House of Representatives 27 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 189: Section 5 (definition of compliance powers) Item 190: Section 5 (definition of compliance purposes) Item 191: Section 5 Item 192: Section 5 (definition of examination notice) Item 193: Section 5 Item 194: Section 5 (paragraph (b) of the definition of inspector) Item 195: Section 5 123. These items would amend section 5 of the BCIIP Act to remove or amend a range of definitions that would no longer be required as Part 4 would repeal or amend provisions that use these defined terms. 124. The definition of 'compliance powers' would be amended to: • account for the repeal of the function of 'authorised officer' in place of FSO; and • clarify that compliance powers can only be exercised by FSOs appointed under section 68. 125. The definition of 'compliance purposes' would be amended to: • account for the repeal of the function of 'authorised officer' in place of FSO; and • clarify that compliance purposes refers only to those in subsection 70(2). Item 196: Sections 7, 8 and 9 126. Sections 7, 8 and 9 of the BCIIP Act define 'industrial action', 'protected industrial action', and 'ancillary site' respectively. These terms are relevant to the operation of Chapter 6, which prohibits certain kinds of industrial action and picketing relating to building work. 127. This item would repeal these sections. In accordance with the Government's objective of ensuring building industry participants have the same rights as participants in other industries in relation to enforcement of the FW Act, these definitions would no longer be required as Part 4 would repeal Chapter 6. Item 197: Part 1 of Chapter 2 (heading) Item 198: Section 14 (paragraph beginning "Many of") Item 199: At the end of Part 1 of Chapter 2 Fair Work Legislation 28 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 128. These items would amend the simplified outline of Chapter 2 in section 14 of the BCIIP Act to reflect the limited purpose the Chapter would have between the transition time and the ABCC abolition time. Amendments would: • remove references to the functions and powers conferred on the ABC Commissioner; and • amend the heading of Part 1 of Chapter 2; and • provide that the object of the amended BCIIP Act in section 3 would not apply to this Chapter. This would clarify that the transitional arrangements in this Chapter are intended to have limited and independent operation from the remaining provisions concerning the FSC. Item 200: Section 16 129. Section 16 of the BCIIP Act sets out the functions of the ABC Commissioner, which include monitoring compliance with relevant laws by the industry, taking enforcement action where necessary, and promoting appropriate standards of conduct by building industry participants. 130. This item would repeal those functions and provide the ABC Commissioner with transitional functions necessary to facilitate the orderly and efficient winding up of the ABCC. These transitional functions would be to: • provide information and assistance to the FWO to ensure the FWO can perform their functions, and exercise their powers, under the FW Act (so far as those functions and powers relate to the building industry) and Division 5 of Part 3 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; • prepare for the abolition of the ABCC under Division 2 of Part 3 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; and • any other functions conferred by the ABC Commissioner by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 or another Act. Item 201: Subsection 19(2) 131. Subsection 19(2) enables the ABC Commissioner to delegate powers and functions in relation to the examination notice regime to a Deputy ABC Commissioner, or if no Deputy has been appointed an SES employee. Consequential to the repeal of the examination notice regime by item 229, this item would repeal subsection 19(2). Item 202: Section 20 (heading) Item 203: Subsection 20(1A) Item 204: Subsection 20(2) House of Representatives 29 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 205: Subparagraph 20(2)(a)(i) Item 206: Subparagraph 20(2)(a)(i) Item 207: Subparagraph 20(2)(a)(ii) Item 208: Paragraph 20(2)(b) Item 209: Paragraph 20(2)(c) Item 210: Subparagraphs 20(2)(d)(i) and (ii) Item 211: Subparagraphs 20(2)(e)(i) and (ii) Item 212: Paragraphs 20(2)(f), (g), (h) and (i) Item 213: After subsection 20(2) Item 214: Subsection 20(3) Item 215: Paragraphs 20(3)(a) and (b) Item 216: Subsection 20(4) Item 217: Subsection 20(5) 132. Current section 20 of the BCIIP Act requires the ABC Commissioner to prepare and give the Minister a quarterly report on the performance of the ABC Commissioner's functions and exercise of their powers during the quarter. It also sets out requirements for each quarterly and annual report prepared by the ABC Commissioner. 133. These items would amend section 20 to remove: • the requirement for the ABC Commissioner to prepare a quarterly report; and • any references to the quarterly report. 134. This would ensure the ABC Commissioner is not required to prepare a quarterly report after the transition time but before the ABCC abolition time, when the ABC Commissioner's focus would be to facilitate the orderly and efficient winding up of the ABCC. Requiring the ABC Commissioner to prepare a quarterly report during this period would detract from their ability to carry out this purpose. 135. Item 331 would require the FWO to report on the ABC Commissioner's activities during the period before the ABCC abolition time in its annual report and include the information that current section 20 requires the quarterly report and annual report to include. Fair Work Legislation 30 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 218: Subsection 32A(2) 136. Section 32A of the BCIIP Act establishes and provides for the functions of the Working Group. Members of the Working Group and the Chair are appointed under sections 32C and 32 of the BCIIP Act respectively. Part 2 of this Schedule would discontinue the Working Group and terminate the appointment of members of the Working Group and the Chair. 137. This item would repeal and replace the Working Group's functions in section 32A(2). Prior to its discontinuance, the Working Group's sole function would be to assist the Chair in preparing the report mentioned in section 32K. Item 219: Section 32K 138. This item would repeal and replace section 32K of the BCIIP Act, providing for the final reporting requirements of the Chair to the Minister before the Working Group's discontinuance. It would clarify that the Chair would be required to report on the membership and operations of the Working Group from 1 July 2022 until the transition time. Item 220: Chapter 3 139. This item would repeal Chapter 3 of the BCIIP Act. Chapter 3 requires the Minister to issue a Building Code, which is a code of practice that sets out requirements certain persons must comply with in respect of building work. 140. Section 34 of the BCIIP Act sets out several substantive matters the Building Code must address, including procurement matters relating to building work, as well as other matters it may address, including work health and safety matters relating to building work. 141. The Building Code 2016 was issued by the former Minister for Employment. The Minister made the Amendment Instrument to repeal all the Building Code 2016's requirements but those the BCIIP Act currently mandates. The Amendment Instrument commenced on 26 July 2022. 142. Repealing Chapter 3 would remove the requirement of the Minister to issue a Building Code. It would also achieve the Government's commitment to repeal the Building Code 2016. 143. It is intended this item would have the effect such that none of the requirements of the Building Code 2016 would continue to apply to any active procurements, expressions of interest or requests for tender that commenced prior to its repeal. House of Representatives 31 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 221: Before paragraph 38(a) 144. This item would amend section 38 of the BCIIP Act, which sets out the functions of the FSC, to insert a new paragraph 38(aa) which would provide that the FSC's functions include promoting the object of the BCIIP Act. Item 222: After paragraph 40(1)(b) 145. This item would insert paragraph 40(1)(ba), which would provide that the FSC can delegate all or any of their powers and functions to an APS employee whose duties relate to the powers or functions of the FSC. 146. Under section 40 of the BCIIP Act, the FSC can delegate their powers and functions to FSOs, SES employees and a person (whether or not an SES employee) prescribed by the rules. The FSC can further delegate their functions or powers to APS employees engaged for the purposes of the Office of the FSC because of a transitional provision of the BCI C&T Act preserving a regulation made under the Fair Work (Building Industry) Act 2012. 147. Item 317 would repeal the BCI C&T Act. As such, this provision would ensure the FSC's current delegation powers are preserved, while avoiding convoluted drafting and enhancing transparency concerning the ability of the FSC to delegate their powers. Primarily, any decision-making powers and / or administrative functions that would to be delegated would be those of the FSC described in the Accreditation Scheme Rules. 148. It is anticipated that powers would be delegated to Executive Level APS officers engaged in the Office of the FSC, who the FSC considers possess the appropriate training, qualifications, skills or experience to exercise the decision-making powers and / or carry out the administrative functions. This provision would also ensure the FSC is well-placed to delegate decisions arising under the Accreditation Scheme Rules to appropriate staff of the Office of the FSC if any conflicts of interest arise. The Office of the FSC would continue to ensure delegates are provided with policy and procedural guidance to assist in appropriate decision-making. Item 223: Chapter 5 149. This item would repeal Chapter 5 of the BCIIP Act. Chapter 5 prohibits picketing and certain kinds of industrial action relating to building work and enables any person to apply for an injunction to restrain a person from organising or engaging in these actions. 150. This kind of conduct is sufficiently covered by other laws. For example, Part 3-3 of the FW Act includes provisions relating to industrial action, and the Competition and Consumer Act 2010 has provisions dealing with secondary boycotts. Depending on the nature of the conduct, state or territory criminal laws or common law torts may also apply. Fair Work Legislation 32 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 151. Repealing Chapter 5 would ensure that the same federal workplace relations laws apply regardless of the industry a person works in. Item 224: Chapter 6 152. This item would repeal Chapter 6 of the BCIIP Act. Chapter 6 deals with coercion, discrimination, and unenforceable agreements. It provides that it is unlawful to: • coerce another person to employ a person, engage a contractor or allocate duties or responsibilities relating to building work; or • coerce another person in relation to their choice of superannuation fund; or • coerce another person to agree to make, vary or terminate a Commonwealth industrial instrument relating to building work. 153. Chapter 6 also provides that it is unlawful to take action against a constitutionally covered building employer (defined in section 5 of the BCIIP Act) related to the coverage of building employees by a Commonwealth industrial instrument. Further, it provides that agreements entered into to secure standard employment conditions for building employees working on multi-employer sites are unenforceable. 154. Provisions of the FW Act governing the conduct of employers, employees and industrial associations and penalties for contraventions of the FW Act would apply unchanged to building industry participants. This includes provisions prohibiting coercion, adverse action, and discrimination in Part 3-1, and provisions prohibiting pattern bargaining in industrial action in Part 3-3. Item 225: Section 60 (paragraph beginning "A person") Item 226: Section 60 (paragraph beginning "Australian Building and Construction Inspectors") Item 227: Section 60 (paragraph beginning "Australian Building and Construction Inspectors") Item 228: Section 60 (paragraph beginning "Intentionally hindering") 155. These items would amend the simplified outline of Chapter 7 contained in section 60 of the BCIIP Act to reflect proposed amendments to other sections in Chapter 7. 156. Amendments would include: • removing references to examination notices capable of being issued under Part 2 of Chapter 7 and the powers which follow from the issue of such notices; and • removing references to ABC Inspectors and changing references from authorised officers to FSOs. This would reflect the removal of the positions of ABC House of Representatives 33 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Inspectors. As the term 'authorised officer' refers to both ABC Inspectors and FSOs, it would no longer be required. Item 229 Part 2 of Chapter 7 157. This item would repeal Part 2 of Chapter 7, which relates to the examination notices regime. The examination notices regime enables the ABC Commissioner to apply to have a nominated AAT presidential member issue a notice compelling a person to give information, produce documents or answer questions relating to an investigation of a suspected contravention of the BCIIP Act or a designated building law. The Commonwealth Ombudsman oversees the exercise of this power. 158. Non-compliance with an examination notice attracts harsher penalties for non- compliance than participants in other industries would be subject to under the FWO notice regime in the FW Act. Failure to comply with an examination notice is a criminal offence with a maximum penalty of six months, while non-compliance with a FWO notice only attracts a civil sanction. 159. Further, BCIIP Act examination notices can be issued in relation to a broader set of suspected contraventions when compared to FWO notice regime in the FW Act. 160. In order to facilitate a smooth transition of regulation of the building industry, the FWO would be able to disclose information, records or documents obtained by the ABC Commissioner with appropriate restrictions, as item 330 would ensure that information obtained under the examination notice regime would continue to be protected. The FWO would not be able to use the information, records, or documents against a person who, in good faith, gave the information because of section 103 of the BCIIP Act which provides for a protection from liability relating to examination notices (the operation of which would be preserved by section 7 of the AI Act). Item 230: Part 3 of Chapter 7 (heading) Item 231: Division 1 of Part 3 of Chapter 7 Item 232: Division 3 of Part 3 of Chapter 7 (heading) Item 233: Section 70 (heading) Item 2341: Subsection 70(1) Item 235: Subsection 70(3) Item 236: Subsection 70(3) (note) Item 237: Section 71 (heading) Item 238: Section 71 Fair Work Legislation 34 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 239: Paragraph 71(b) Item 240: Section 72 (heading) Item 241: Subsection 72(1) Item 242: Subsection 72(3) (heading) Item 243: Subsection 72(3) Item 244: Subsection 72(3) Item 245: Subsection 72(4) Item 246: Subsection 72(4) Item 247: Section 73 Item 248: Section 74 (heading) Item 249: Subsection 74(1) (heading) Item 250: Subsection 74(1) Item 251: Subsection 74(1) Item 252: Paragraphs 74(1)(c) and (d) Item 253: Subsection 74(2) (heading) Item 254: Subsection 74(2) Item 255: Subsection 74(2) Item 256: Section 75 (heading) Item 257: Subsection 75(1) Item 258: Subsection 75(1) Item 259: Subsection 75(1) Item 260: Paragraphs 75(1)(b), (2)(a) and (2)(b) Item 261: Subsection 75(3) Item 262: Subsection 76(1) Item 263: Section 76 Item 264: Subsection 77(1) House of Representatives 35 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 265: Subsection 77(1) Item 266: Section 78 (heading) Item 267: Section 78 Item 268: Subsection 79(1) Item 269: Subsection 79(1) Item 270: Subsections 79(1) and (2) Item 271: Paragraphs 79(3)(a) to (f) 161. These items would repeal or amend provisions in Part 3 of Chapter 7 of the BCIIP Act which reference ABC Inspectors and provide their powers. These items would not affect the appointment or powers of FSOs. Provisions repealed 162. Division 1 of Part 3 of Chapter 7 would be repealed. Division 1 relates to the appointment of ABC Inspectors. The appointment of any person as an ABC Inspector under subsection 66(1) of the BCIIP Act would be terminated. ABC Inspectors' identity cards issued under section 67 of the BCIIP Act, would no longer have effect. 163. Subsection 70(1), which sets out compliance purposes for which powers of ABC Inspectors may be exercised would be repealed. Consequently, the note in subsection 70(3) would be repealed. Subsection 72(1), which sets out the powers of ABC Inspectors to enter premises would also be repealed. Paragraphs 79(3)(a) to (f) would be repealed to remove reference to roles which would no longer exist and would therefore no longer hold capacity to be supplied with documents or records to use as provided for by subsection 70(1). 164. These repeals would be consequential to the repeal of other provisions creating and empowering ABC Inspectors in accordance with the Government's election commitment to abolish the ABCC. Provisions amended 165. Sections 70 to 79 would be amended to omit references to ABC Inspectors and the ABC Commissioner, replace references to authorised officers with FSOs, and repeal subsections exclusively pertaining to the powers and functions of ABC Inspectors. 166. The amendments would be consequential to the proposed repeal of provisions establishing the roles of ABC Commissioner and ABC Inspector, in accordance with the Government's election commitment to abolish the ABCC. Item 272: Section 80 (paragraph beginning "An authorised applicant") Fair Work Legislation 36 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 273: Section 80 (paragraph beginning "The ABC Commissioner") 167. These items would amend the simplified outline of Chapter 8 of the BCIIP Act to remove reference to the enforcement powers of the ABC Commissioner and ABC Inspectors. 168. These amendments would be consequential to the repeal of other provisions creating and empowering the ABC Commissioner and ABC Inspectors in accordance with the Government's election commitment to abolish the ABCC. Item 274: Subsection 81(1) (note) Item 275: Subsection 81(4) 169. These items would amend section 81 of the BCIIP Act. Section 81 enables a relevant court, on application by an authorised applicant (broadly, an eligible person), to make orders relating to a person who has contravened a civil remedy provision, such as for an injunction, compensation or other remedial orders. It also provides the for pecuniary penalties for those civil remedy provisions. 170. The amendments would remove references to enforceable undertakings, compliance notices, unlawful industrial action, and picketing. Part 3 would repeal the provisions of the BCIIP Act that relate to these matters, meaning these references would be redundant. Item 276: Sections 95, 96 and 97 171. Sections 95 and 96 clarify what actions of building associations, including unincorporated building associations, are for the purposes of the BCIIP Act (for example, an action taken by an officer or agent of a building association acting in that capacity is deemed to be an action of the association). Section 97 concerns the capacity and state of mind of a person being coerced. These provisions are relevant to the operation of Chapters 5 and 6, which regulate conduct of building industry participants relating to building work. 172. Consequential to the proposed repeal of the industry specific provisions in Chapters 5 and 6, this item would repeal sections 95, 96 and 97 as these provisions would no longer be required. Item 277: Part 3 of Chapter 8 173. This item would repeal Part 3 of Chapter 8 of the BCIIP Act, which provides other enforcement powers for ABC Inspectors in the form of enforceable undertakings and compliance notices, including for review of those notices. 174. Part 3 of Chapter 8 would be repealed in accordance with the Government's election commitment to abolish the ABCC. House of Representatives 37 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 175. The FWO and FW Inspectors have broadly analogous enforcement powers under sections 715 and 716 of the FW Act. Item 278: Section 101 (paragraph beginning with "Part 3") 176. This item would amend the simplified outline of Chapter 9 of the BCIIP Act to remove reference to the additional powers of the ABC Commissioner that would be repealed by item 301. Items 279: Subsection 102(1) Items 280: Subsection 102(1) (note) Items 281: Subsection 102(2) Items 282: Subsection 102(3) Items 283: Subsection 102(3) Items 284: Paragraph 102(3)(a) Items 285: Paragraph 102(3)(b) Items 286: Subsection 102(3) Items 287: At the end of section 102 177. These items would amend section 102 of the BCIIP Act to remove references to the examination notice regime. This would be consequential to the repeal of Part 2 of Chapter 7. The application of section 102 to FSOs' exercise of powers under sections 74 and 77 would not be affected. 178. Items 286 and 287 would ensure that despite the repeal of subsections 102(2)(d) and (e), the application of subsection 102(3) in relation to requests made by FSOs under sections 74 and 77 remains unaffected. 179. Subsection 102(2) currently provides use and derivative use immunity in some circumstances by limiting the admissibility in evidence of information given, documents or records produced, or questions answered under an examination notice against an individual in proceedings, other than in limited scenarios. Despite the amendments that these items would make to section 102, subsection 7(2) of the AI Act would ensure the continued application of the use and derivative use immunity to information, documents, records and answers provided under an examination notice. Item 288: Section 103 180. This item would repeal section 103 of the BCIIP Act to reflect the proposed repeal of the examination notices regime. Item 103 protects a person from liability for Fair Work Legislation 38 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission contraventions of other laws or civil proceedings relating to their compliance with an examination notice in good faith. 181. Section 7 of the AI Act would ensure that a person who complied with an examination notice in good faith prior to the repeal of section 103 of the BCIIP Act would continue to be protected from liability. Items 289: Section 105 (heading) Items 290: Paragraphs 105(1)(a) to (g) Items 291: Subsection 105(1) Items 292: Subsections 105(2) and (3) Items 293: Subsection 105(3) Items 294: Paragraphs 105(3)(a) and (b) Items 295: Subsection 105(4) Items 296: Subsection 105(4) Items 297: Paragraphs 105(4)(c) and (d) Items 298: Subsection 105(5) 182. These items would amend section 105 of the BCIIP Act to remove references to the ABC Commissioner, and various other members of the Office of the ABC Commissioner. This would be consequential to the proposed repeal of provisions establishing these positions. 183. The effect of the changes would be that section 105 would only apply to information acquired by the FSC, an FSO, an APS employee assisting the FSC, or a consultant engaged by the FSC on behalf of the Commonwealth. 184. The disclosure of information requirements in subsections 105(2), (3) and (4) would be similarly amended to apply only to the FSC. All references to the ABC Commissioner would be removed. Additionally, these items would repeal references to matters arising under the FW Act or FW Transitional Act, since these references are relevant to the powers and functions of the ABC Commissioner and not the FSC. 185. The structure of subsections 105(3) and (4) would be amended to make it clear that the FSC may disclose or authorise the disclosure of information to the Minister or Department if they reasonably believe the information would assist the Minister to consider a complaint or issue in relation to a matter arising under the FSC Act. 186. Subsection 105(5) would be repealed as it relates exclusively to disclosures or authorisations of disclosures of information by the ABC Commissioner. House of Representatives 39 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 187. All amendments to section 105 would be consequential to the proposed repeal of provisions relating to the ABCC, in accordance with the Government's election commitment to abolish it. Item 299: Section 106 188. This item would repeal section 106 of the BCIIP Act. Section 106 protects the confidentiality of information obtained under an examination notice. This would be consequential to the repeal of Part 2 of Chapter 7 (which establishes the examination notice regime). 189. Despite the proposed repeal of section 106, item 330 would ensure that it continues to protect information obtained under the examination notice regime. Item 300: Subsection 107(1) 190. Section 107 provides that certain reports, including quarterly reports the ABC Commissioner is required to prepare under current section 107, are not to include information relating to an individual's affairs. This item would amend subsection 107(1) of the BCIIP Act to remove reference to quarterly reports. This would be consequential to the repeal of the requirement to produce a quarterly report. Item 301: Part 3 of Chapter 9 191. This item would repeal Part 3 of Chapter 9 of the BCIIP Act, which provides the ABC Commissioner with additional powers to: • publish details of non-compliance with the Building Code 2016, the BCIIP Act or designated building laws (section 108); • intervene in civil proceedings involving a building industry participant before a court in a matter arising under the BCIIP Act, Independent Contractors Act, FW Act or FW Transitional Act (section 109); • intervene or make a submission in a matter involving a building industry participant before the FWC that arises under the FW Act or FW Transitional Act (section 110); and • to institute proceedings under the FW Act, FW Transitional Act or an instrument of either Act in circumstances where a FW Inspector (within the meaning of the FW Act) is authorised to do so (section 111). 192. Section 112, which requires the General Manager to notify the ABC Commissioner wherever an application is lodged under the FW Act or FW Transitional Act where that application relates to a building industry participant or building work and the outcome of those applications, would also be repealed. Fair Work Legislation 40 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 302: Section 117 193. This item would repeal section 117 of the BCIIP Act, which relates to court proceedings in which the ABC Commissioner or ABC Inspectors are applicants. Section 117 provides that a court cannot require the ABC Commissioner or an ABC Inspector that has brought proceedings under the BCIIP Act, the FW Act or the FW Transitional Act to give undertakings as to damages as a condition of granting an interim injunction. 194. Repealing section 117 would be consistent with the Government's election commitment to abolish the ABCC. Item 303: Section 118 (heading) Item 304: Section 118 (1) Item 305: Paragraphs 118(1)(a) and (b) 195. The protection from civil proceedings provided by section 118 of the BCIIP Act applies in circumstances where a person suffered loss, damage or injury of any kind as a result of an act or omission committed in good faith and without negligence. The protection is limited to acts or omissions committed while executing powers or functions under the BCIIP Act. 196. These items would amend section 118 of the BCIIP Act to reflect changes proposed by this Part, which would repeal of the ABC Commissioner's functions, powers and duties, and confer on the ABC Commissioner transitional functions on necessary to facilitate the orderly and efficient winding up of the ABCC. Item 306: Sections 119 and 119A 197. This item would repeal section 119 of the BCIIP Act, which provides the Minister with the power to delegate their functions or powers under Chapter 3 (the Building Code) to the ABC Commissioner. With the repeal of Chapter 3 by Item 220 of this Part this delegation power would no longer be required. 198. This item would also repeal section 119A of the BCIIP Act, which required a review into the operation of the BCIIP Act to be conducted within 12 months after the commencement of the section, and no longer serves a purpose. House of Representatives 41 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Division 2 - Abolition of the Australian Building and Construction Commission etc. Amendments to the Building and Construction Industry (Improving Productivity) Act 2016 Item 307: Title 199. This item would amend the long title of the BCIIP Act to reflect changes in the purpose of the legislation. Item 308: Section 1 200. Consistent with the Government's intention to abolish the ABCC, while retaining provisions relating to the Accreditation Scheme and FSC, this item would amend the short title from the BCIIP Act to the FSC Act. 201. A note would direct the reader to section 10 of the AI Act. Section 10 provides that where an Act references a short title that is or was provided by law for the citation of another Act as originally enacted, or of another Act as amended, then: • the reference shall be construed as a reference to that other Act as originally enacted and as amended from time to time; • where that other Act has been repealed and re-enacted, with or without modifications, the reference shall be construed as including a reference to the re- enacted Act as originally enacted and as amended from time to time; and • if a provision of the other Act is repealed and re-enacted (including where the other Act is repealed and re-enacted), with or without modifications, a reference to the repealed provision extends to any corresponding re-enacted provision. 202. Accordingly, section 10 of the AI Act would ensure that any references to the previous short title of the BCIIP Act that the Bill would not amend are read as references to the FSC Act after the commencement of this item. Item 309: Section 5 Item 310: Chapter 2 203. These items would repeal Chapter 2 of the BCIIP Act and consequentially repeal definitions relating to the roles established by Chapter 2 in section 5 of the BCIIP Act, which would no longer be required. 204. Chapter 2 establishes the ABCC and creates the positions of ABC Commissioner and Deputy ABC Commissioners. It also provides for the appointment of the ABC Commissioner and provides many of the powers and functions of the ABC Commissioner. Fair Work Legislation 42 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 205. Repealing Chapter 2 would achieve Government's election commitment to abolish the ABCC. It would also terminate the appointments of the ABC Commissioner and Deputy ABC Commissioners. 206. Chapter 2 includes the terms and conditions of the staff of the ABCC and enables the ABC Commissioner to engage consultants. The transitional provisions would address the arrangements for ABCC staff and consultants. 207. Chapter 2 also establishes the Working Group and provides for the appointment of its members and the Chair. Repealing Chapter 2 would discontinue the Working Group and terminate the appointments of the Chair and members. Proposed amendments in Divisions 1 and 5 of this Part would provide for the payment of any unpaid expenses incurred by members prior to the repeal, as well as completion of reporting requirements. Item 311: Section 107 208. This item would repeal section 107 of the BCIIP Act. Section 107 provides that information relating to the affairs of an individual must not be included in certain reports the ABC Commissioner is required to produce and would be redundant because of the proposed abolition of the ABC Commissioner position and repeal of the relevant reporting requirements. 209. Section 107 largely mirrors section 714A of the FW Act. Section 714A would apply to information contained in documents and records that would be transferred to the FWO by items 334 and 335, ensuring that reports produced by the FWO under sections 685 and 686 of the FW Act would not include any information relating obtained by the ABCC. Item 312: Paragraph 118(2)(a) 210. This item would remove the reference to 'designated officials', which is defined to include the ABC Commissioner, Deputy ABC Commissioner, an ABC Inspector, a member of staff of the ABCC, a person assisting the ABC Commissioner, a person engaged as a consultant by the ABC Commissioner and other officials relevant to the ABC Commissioner's powers and functions. 211. The section would continue to operate to protect the FSC, FSOs, an APS employee assisting the FSC, or a person engaged as a consultant by the FSC on behalf of the Commonwealth from civil proceedings for loss, damage or injury suffered by another person. 212. The protection from civil proceedings applies in circumstances where a person suffered loss, damage or injury of any kind as a result of an act or omission committed in good faith and without negligence. The protection is limited to acts or omissions committed while executing powers or functions under the BCIIP Act. House of Representatives 43 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 213. Because Part 3 would abolish the ABCC and ABC Commissioner, references to the ABC Commissioner, Deputy ABC Commissioner, an ABC Inspector, a member of staff of the ABCC, a person assisting the ABC Commissioner, a person engaged as a consultant by the ABC Commissioner would be redundant. Item 333 would make clear that despite the amendments that would be made to section 118, it would continue to apply unamended in relation to acts by designated officials before the commencement of this item. Division 3 - Consequential amendments Amendments to the Fair Work (Registered Organisations) Act 2009 Item 313: Subsection 93(1) (paragraph (c) of the definition of workplace or safety law) 214. This item would amend paragraph 93(1)(c) of the definition of 'workplace or safety law' to remove the reference to the BCIIP Act and replace it with the new short title. It would change the scope rather than the meaning of the definition, as a result of the changes to the scope of the BCIIP Act. 215. This item is consequential to amendments made by this Part. Item 314: Subparagraphs 337A(1)(b)(iii), (iiia) and (iv) 216. This item would repeal subparagraphs 337A(1)(b)(iii), (iiia) and (iv). Section 337A sets out the circumstances in which a disclosure of information by a whistleblower qualifies for protection under Part 4A of the RO Act. 217. A whistleblower is protected under Part 4A if they fall into one of the categories set out by paragraph 337A(1)(a) and make their disclosure to a person described in paragraph 337A(1)(b). Presently, paragraph 337A(1)(b) sets out that protected disclosures may be made to (among other persons) the ABC Commissioner, a Deputy ABC Commissioner or an ABC Inspector. 218. Repealing these subparagraphs would remove unnecessary reference to the positions of the ABC Commissioner and their Deputies and ABC Inspectors. It is consequential to the amendments in Division 2 of this Part which would repeal provisions giving the ABC Commissioner, Deputy ABC Commissioners and ABC Inspectors their powers and functions. These changes would not affect the ability of a person to make a protected disclosure to the FWO (under paragraph 337A(1)(b)(v)). Fair Work Legislation 44 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 Item 315: Paragraph 4(4)(aba) 219. This item would amend paragraph 4(4)(aba). Section 4 sets out circumstances in which courts are prescribed additional jurisdiction to handle civil claims. 220. Presently, paragraph 4(4)(aba) explicitly provides that section 4 does not apply to matters arising under the BCIIP Act. Repealing this paragraph would remove unnecessary reference to the BCIIP Act and is consequential to the making of amendments in Division 1 of this Part which would remove capacity for civil claims to be brought in this manner. Division 4 - Repeals Amendments to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 Item 316: The whole of the Act 221. This item would repeal the whole BCI C&T Act as the amendments made by Part 3 would mean the BCI C&T Act is no longer required. 222. The application of the Building Code 2013 to certain projects is preserved by the Transitional Rules, which were made under item 26 of Sch 2 of the BCI C&T Act. By repealing the BCI C&T Act (and the associated Transitional Rules), the Building Code 2013 would no longer apply to any project. Amendments to the Building and Construction Industry (Consequential and Transitional) Act 2005 Item 317: The whole of the Act 223. This item would repeal the whole BCI C&T Act as amendments made by Part 4 would mean the BCI C&T Act is no longer required. Division 5 - General transitional provisions Item 318: Definitions 224. This item would provide definitions of terms used in Division 5 of this Part. To aid with reading this Part, the following definitions would be included: • ABCC Enterprise Agreement means the Australian Building and Construction Commission Enterprise Agreement 2017-2020. The ABCC Enterprise Agreement is publicly available on the FWC's Website at: https://www.fwc.gov.au/document- House of Representatives 45 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission search/view/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcm Uud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAxNy81L2 FlNDI0MjYzLnBkZg2/3/3e7724ea-b7aa-43c2-972a- cf2d6b44dcd2/Application%24%24Australian%24%24Building%24%24Constru ction%24%24Commission • ABCC abolition time means the commencement of Division 2 of this Part. • Agency has the same meaning as in the Public Service Act 1999 (PS Act), which defines agency as a Department, Executive Agency or Statutory Agency. The ABCC was constituted as a Statutory Agency within the meaning of the PS Act. • consideration period has the same meaning as in Part I of the ABCC Enterprise Agreement. The consideration period is a two-month period provided to employees starting from the date they were offered a voluntary redundancy, in which they may accept that offer. Relevantly, the consideration period can be reduced by agreement between the employee and the Agency Head if the employee had been provided with the advice prescribed in the ABCC Enterprise Agreement. Unless the employee agrees to reduce the consideration period, notice of termination would not occur before the end of that two-month period. • Fair Work Inspector means a person appointed as a FW Inspector under section 700 of the FW Act. • National Employment Standards has the same meaning as in the FW Act. • retention period has the same meaning as in Part I of the ABCC Enterprise Agreement. Relevantly, the retention period commences the day after the expiration of the consideration period and is seven months in duration. During the retention period the ABCC would assist the employee in attempts to find alternative employment; may, on request, assist in meeting reasonable expenses incurred by the employee in seeking alternative employment; and/or may, after giving four weeks of notice to an employee, reduce their classification as a means of securing alternative employment. The retention period cannot be extended using leave and can only be extended in exceptional medical circumstances. • transition time means the commencement of Division 1 of this Part. Division 5 (general transitional provisions) would also commence at the same time. Item 319: Non-SES Staff Overview 225. This item would operate to terminate the employment of any ongoing or non-ongoing non-SES ABCC employee/s who have not been transferred to another Commonwealth agency, been made redundant, resigned, or retired by the ABCC abolition time. Fair Work Legislation 46 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 226. Any staff still employed by the ABCC at the ABCC abolition time (regardless of whether steps have been taken to terminate their employment) would be paid out their entitlements, including any amounts they would be entitled to under the ABCC Enterprise Agreement for voluntary or involuntary redundancy. This would avoid any acquisition(s) of property from a person on other than on just terms contrary to section 51(xxxi) of the Constitution. 227. The redundancy process in Part I of the ABCC Enterprise Agreement provides for: • Voluntary redundancy - an employee would have a two-month consideration period in which to consider the offer of a voluntary redundancy (consideration period). During the consideration period, an employee would be entitled to an amount of 'agreed financial assistance' to obtain independent financial advice up to the value of $1,000 and career counselling to the value of $1,000 to consider an offer of a voluntary redundancy. • Involuntary redundancy - if an employee does not accept an offer of voluntary redundancy, they would be entitled to a retention period of seven months (less the number of weeks for which the employee is entitled to redundancy pay under the NES) commencing on the day after the expiry of the two-month consideration period (retention period). 228. This item would provide for termination payments for APS employees (other than SES employees) in four different scenarios, namely, when: • a person has not been offered a voluntary redundancy before the ABCC abolition time; • a person has been offered a voluntary redundancy, but the consideration period has not ended before ABCC abolition time; • a person has been offered a voluntary redundancy, but the retention period has not ended before ABCC abolition time; and • a person has accepted a voluntary redundancy, but the notice period has not ended before the ABCC abolition time. 229. It would also provide for termination payments of SES employees and consultants. Scope 230. This subitem would apply to APS employees (other than SES employees) who are still employed by the ABCC and covered by the ABCC Enterprise Agreement immediately before the ABCC abolition time. This item would not apply to APS employees who had arranged to be transferred to another Commonwealth Agency, whether under section 26 of the PS Act or otherwise. House of Representatives 47 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 231. Notes to this subitem would clarify that: • 'APS employee' has the same meaning as in section 2B of the AI Act, which is defined by reference to the PS Act as a person who is engaged as APS employee under section 22 and 72 of that Act; and • 'SES employee' has the same meaning as in section 2B of the AI Act, which is defined by reference to section 34 of the PS Act as an APS employee who is classified as SES employee. Termination of employment 232. This subitem would provide that at the ABCC abolition time: • the employment of the affected non-SES employees would be terminated under section 29 of the PS Act on the ground that the person is excess to the requirements of the ABCC; • for the purposes of section 119 of the FW Act, the termination of employment would be treated as if the termination was at the employer's initiative because the employer no longer required the job done by the person to be done by anyone; and • the FWO would pay, on behalf of the Commonwealth, any amounts payable by the Commonwealth to the affected non-SES employee because of the termination of employment. Termination payments--person not offered voluntary redundancy 233. This subitem would provide that the ABCC Enterprise Agreement does not apply to the person after the ABCC abolition time, to make explicitly clear that the termination payments would be calculated in accordance with this subitem. 234. For an ongoing employee who was not on probation and was not offered a voluntary redundancy, this subitem would provide for a lump sum payment of an amount equal to two months of the person's pay (in accordance with clause 252 of the ABCC Enterprise Agreement). The person would also be entitled to reimbursement of expenses incurred by the person within 2 months after the ABCC abolition time in obtaining independent financial advice (up to a limit of $1,000) and career counselling (up to a limit of $1,000). 235. The person would also be entitled to a lump sum payment of either their notional involuntary redundancy amount (as calculated under subitem (7)) or their notional voluntary redundancy amount (as calculated under subitem (8)), whichever is the greater. 236. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. This would ensure that a person who accepted a Fair Work Legislation 48 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission voluntary redundancy would not be worse off than a person who was made involuntarily redundant, and that there would be no acquisition of property other than on just terms contrary to section 51(xxxi) of the Constitution. Termination payments--person offered voluntary redundancy and consideration period had not ended before ABCC abolition time 237. This subitem would provide that the ABCC Enterprise Agreement does not apply to the person after the ABCC abolition time, to make explicitly clear that the termination payments would be calculated in accordance with this subitem. 238. For an ongoing employee who was not on probation and was offered but had not accepted a voluntary redundancy before the ABCC abolition time, but the consideration period had not ended, this subitem would provide for a lump sum payment of an amount equal to the balance of the person's two-month consideration period left remaining after the ABCC abolition time in accordance with clause 252 of the ABCC Enterprise Agreement. The person would also be entitled to reimbursement of expenses incurred by the person within two months after the ABCC abolition time in obtaining independent financial advice (up to a limit of $1,000) and career counselling (up to a limit of $1,000). Those amounts would be reduced by any amount received by the person for those expenses before the ABCC abolition time. 239. The person would also be entitled to a lump sum payment of either their notional involuntary redundancy amount (as calculated under subitem (7)) or their notional voluntary redundancy amount (as calculated under subitem (8)), whichever is the greater. 240. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. This would ensure that a person who was made involuntarily redundant is not worse off than a person who accepted a voluntary redundancy, and that there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Termination payments--person offered voluntary redundancy and retention period had not ended before ABCC abolition time 241. This subitem would provide that the ABCC Enterprise Agreement does not apply to the person after the ABCC abolition time, to make explicitly clear that the termination payments would be calculated in accordance with this subitem. 242. For an ongoing employee who was not on probation, and was offered and accepted a voluntary redundancy before the ABCC abolition time but the person's retention period had not ended, this subitem would provide that the person is entitled to be paid a lump sum payment equal to the balance of the employee's seven-month retention period left remaining after the ABCC abolition time (reduced by the number of weeks for which House of Representatives 49 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission the person is entitled to redundancy pay under the NES) plus the employee's entitlement to redundancy pay under the NES. 243. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. This would ensure that a person who was made involuntarily redundant is not worse off than a person who accepted a voluntary redundancy, and that there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Termination payments--person accepted voluntary redundancy and notice period had not ended before ABCC abolition time 244. This subitem would provide that the ABCC Enterprise Agreement does not apply to the person after the ABCC abolition time, to make explicitly clear that the termination payments would be calculated in accordance with this subitem. 245. For an ongoing employee who was not on probation and was offered and accepted (but not yet been paid) a voluntary redundancy before the ABCC abolition time, but the person's notice period had not ended, this subitem would provide that the person is entitled to be paid a lump sum payment equal to the redundancy benefit that would have become payable to the person under clause 256 of the ABCC Enterprise Agreement. The person would also be entitled to be paid the balance of the notice period under clause 252 of the ABCC Enterprise Agreement. 246. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. This would ensure that a person who accepted a voluntary redundancy is not worse off than a person who was made involuntarily redundant, and that there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Notional involuntary redundancy amount 247. This subitem would provide that a person's notional involuntary redundancy amount is the sum of: • Seven months of the person's pay (reduced by the number of weeks for which the person is entitled to redundancy pay under the NES); and • the person's NES entitlement to redundancy pay; and • payment in lieu of notice equal to: o four weeks of the person's pay; or o five weeks of the person's pay, if the person over 45 with at least five years of continuous service at the ABCC abolition time. Fair Work Legislation 50 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 248. This is intended to reflect the ABCC Enterprise Agreement and to ensure there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Notional voluntary redundancy amount 249. This subitem would provide that a person's notional voluntary redundancy amount is the sum of: • the redundancy benefit that would have been payable to the person under clause 256 of the ABCC Enterprise Agreement; and • payment in lieu of notice equal to: o four weeks of the person's pay; or o five weeks of the person's pay, if the person over 45 with at least five years of continuous service at the ABCC abolition time. 250. This is intended to reflect the terms of the ABCC Enterprise Agreement and to ensure there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Amounts payable by the Commonwealth 251. To avoid any doubt, this subitem would clarify that any amounts payable under the above items because of the termination of the person's employment would be payable by the Commonwealth. Redundancy benefit 252. This subitem would clarify that the above-mentioned payment for a redundancy benefit received for a voluntary redundancy or a payment of the balance of the retention period would be redundancy benefits from an APS agency for the purpose of section 66 of the Australian Public Service Commissioner's Directions 2022. Pay 253. This subitem would clarify the meaning of pay for the purposes of calculating a person's termination payment. A person's 'pay' would be defined consistently with clause 259 of the ABCC Enterprise Agreement so that these amounts would be calculated based on: • the person's salary on the day of termination; and • allowances which would be paid during periods of annual leave on a regular basis; House of Representatives 51 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission but excluding • allowances which are reimbursement for expenses incurred; or • a payment for disabilities associated with the performance of duty. Exemption from the Age Discrimination Act 2004 254. This subitem would clarify that anything done in direct compliance with this item would not be unlawful despite Part 4 of the Age Discrimination Act. Item 320: SES Staff 255. This item would operate to terminate the employment of SES employees of the ABCC who were still employed by the ABCC immediately before the ABCC abolition time. This item would not apply to SES employees who were covered by the ABCC Enterprise Agreement or who had arranged to be transferred to another Commonwealth Agency, whether under section 26 of the PS Act or otherwise. 256. This item would provide that that the employment of the affected SES employees would be terminated at the ABCC abolition time under section 29 of the PS Act on the grounds that they are excess to the requirements of the ABCC. The termination of employment would be treated as if the termination was at the employer's initiative because the employer no longer required the job done by the employee to be done by anyone. There would be no requirement to obtain a certificate from the APS Commissioner under section 38 of the PS Act for the termination to take effect. 257. Affected SES employees would be paid any amounts they would be entitled to under the terms of their employment contract as if they were made involuntarily redundant. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. 258. A note to this item would clarify that 'SES employee' has the same meaning as in section 2B of the AI Act, which is defined by reference to section 34 of the PS Act as an APS employee who is classified as SES employee. Item 321: Consultants 259. This item would operate to terminate the engagement of consultants at the ABCC abolition time. Section 32 of the BCIIP Act permits the ABC Commissioner to engage persons having suitable qualifications and experience as consultants. Consultants are engaged on terms and conditions determined by the ABC Commissioner. 260. For affected consultants, the amount of compensation payable would be determined in accordance with the terms and conditions of their engagement. This amount would include any relevant payments for the termination ending the engagement earlier than was provided in the engagement contract if they have been engaged for a specified Fair Work Legislation 52 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission period that has not yet lapsed. The FWO would make these payments on behalf of the Commonwealth, given the ABCC would be abolished at this time. This would ensure there would be no acquisition of property otherwise than on just terms contrary to section 51(xxxi) of the Constitution. Item 322: Civil remedy provisions 261. This item would prevent an application from being made after the transition time under subsection 81(1) of the BCIIP Act in relation to a contravention of a civil remedy provision that this Part would repeal. This would ensure that workplace relations laws are enforced consistently across all sectors. Many of the repealed civil remedy provisions duplicate provisions of the FW Act, meaning there would still be redress available for any egregious conduct. 262. This would displace the operation of s 7 of the AI Act, which would otherwise preserve the right of a person with relevant standing to make an application in relation to contraventions of the repealed civil remedy provisions. Item 323: Legal proceedings 263. This item would transfer the responsibility for the ABCC's ongoing civil court proceedings to the FWO after the transition time. This item would operate to substitute the FWO for the ABC Commissioner or an ABC Inspector as a party to those proceedings. For proceedings that relate to a contravention of a civil remedy provision, this item would make the FWO an authorised applicant for the order. It would also make the FWO the relevant respondent for any application for judicial review of a decision made by the ABC Commissioner or an ABC Inspector. 264. This provision would ensure the ABCC's litigation could be appropriately managed, in a manner that is independent, consistent with the regulation of other industries and avoids any risk of infringing the Constitution. 265. The item would additionally provide the FWO, staff of the Office of the FWO, a person assisting or engaged as a consultant to the FWO (under section 698 or 699 of the FW Act), and FW Inspectors protection from liability for conduct in good faith in relation to BCIIP Act matters as designated officials under s 118 of the BCIIP Act, as there is no equivalent protection in the FW Act. This would preserve the status quo in relation to all proceedings, ensuring that officials in the Office of the FWO have the appropriate protection for carrying out their regulatory functions. House of Representatives 53 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 324: Fair Work Commission proceedings etc. 266. Section 110 of the BCIIP Act provides the ABC Commissioner may intervene or make a submission in a matter before the FWC that arises under the FW Act or the FW Transitional Act if it involves a building industry participant or building work. 267. This item would provide that where the ABC Commissioner has intervened in a matter before the FWC, the ABC Commissioner would cease to be a party to those proceedings or have no further involvement in them, with the FWO being substituted as a party after the transition time. 268. Where the ABC Commissioner has made a submission in a matter before the FWC before the transition time, this item would provide that the submission has effect as if it had been made by the FWO and empower the FWO to amend or withdraw the submission. 269. Section 111 of the BCIIP Act provides the ABC Commissioner and other ABC Inspectors may make an application to the FWC in relation to a matter that arises under the FW Act, the FW Transitional Act or an instrument under either of those Acts if it involves a building industry participant or building work. 270. This item would provide that any applications made by the ABC Commissioner or another ABC Inspector to the FWC that are still pending at the transition time, the FWO would be substituted for the ABC Commissioner or ABC Inspector, with appropriate powers to continue or discontinue the application. This is intended to ensure that there would be no regulatory gap in the building and construction industry. Item 325: Investigations 271. This item would determine responsibility for investigations of contraventions by building industry participants commenced by the ABC Commissioner before the transition time. Under section 16 of the BCIIP Act, the ABC Commissioner's functions include investigating suspected contraventions of the BCIIP Act, Building Code, and designated building laws (that is, the Independent Contractors Act, Act, FW Transitional Act, or a Commonwealth industrial instrument). 272. This item would provide the FWO or a FW Inspector with discretion to continue investigations commenced (but not completed) by the ABC Commissioner before the transition time into suspected contraventions by a building industry participant of either the FW Act, FW Transitional Act, or a Commonwealth industrial instrument. 273. As an alternative to continuing an investigation commenced by the ABCC relating to the above-mentioned laws, item 329 would make clear that the FWO and FW Inspectors could use information obtained in these investigations to inform or separately commence their own investigations. They may wish to do so for practical reasons. Fair Work Legislation 54 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 274. Investigations commenced by the ABC Commissioner of suspected contraventions of the BCIIP Act, Independent Contractors Act or the Building Code 2016 would be discontinued at the transition time. 275. Subitem (3) would make clear that this item would not limit the power of the FWO or a FW Inspector to commence an investigation under the FW Act. There could be some pending ABCC investigations relating to conduct that could have been a contravention of both the FW Act and BCIIP Act, but that were only being investigated as contraventions of the BCIIP Act. This subitem would ensure there is no risk that the FWO is prevented from conducting investigations into these matters. This would be further supported by item 329 makes clear that the FWO could use information obtained in these investigations in the performance of its functions and exercise of its powers. This would ensure the FWO is well placed to effectively regulate the industry. 276. Where the ABCC has commenced an investigation looking into possible contraventions of both the legislation listed in paragraph 325(1)(a) and 325(2)(a), the FWO could continue to investigate the part of investigations relating to the legislation listed in paragraph 325(1)(a). For example, if the ABCC was conducting an investigation into possible contraventions of both the BCIIP Act and Act, the FWO could continue to investigate matters relevant to a possible contravention of the FW Act. 277. These measures would be consistent with the Government's election commitment to abolish the ABCC without undermining legitimate actions against participants suspected of contraventions which could be otherwise pursued under the FW Act. Item 326: Compliance notices 278. This item would determine the application of compliance notices in force under section 99 of the BCIIP Act immediately before the transition time. Presently, compliance notices may be issued under section 99 in relation to suspected contraventions of the BCIIP Act, Building Code, or a designated building law, including the FW Act. Section 100 of the BCIIP Act sets out the ground upon which a person can seek a review of a compliance notice given under section 99. 279. Subitems 326(1) and (2) would continue compliance notices on foot for matters that FWO would have the ability to issue a compliance notice for under the FW Act, but not for other matters such as those arising under the BCIIP Act or Building Code. Those compliance notices continuing to have effect after the transition time would be treated as though they had been issued by a FW Inspector under section 716 of the FW Act to the extent the notice complied with the requirements in subsections 99(2) and 99(3) of the BCIIP Act. 280. Where a person has made an application for review of a compliance notice under section 100 of the BCIIP Act prior to the transition time, section 100 would continue to apply for the purposes of the application being considered. Where a person has not made an application under section 100 of the BCIIP Act prior to the transition time, House of Representatives 55 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission they would be able to make an application for review of the compliance notice under section 716 of the FW Act on either or both of the grounds set out in section 717(1) of the FW Act, being: • the person has not committed a contravention set out in the notice; • the notice does not comply with subsection 716(2) or (3). 281. The FWO and other FW Inspectors would be able to enforce a compliance notice under the FW Act by applying to a relevant court for a civil remedy. Item 327: Payment for reasonable expenses incurred by a member of the Security of Payments Working Group 282. This item would preserve the operation of section 32E after the ABCC abolition time to ensure that members of the Working Group could still claim and be reimbursed for expenses incurred before that time. This would mean that members are able to receive any entitlements that may be payable, despite the repeal of section 32E of the BCIIP Act. 283. From the ABCC abolition time, a person seeking the payment of expenses would be required to apply in writing to the FWO and provide sufficient evidence to establish that they incurred the expenses. Item 328: Payment for expenses incurred in attending an examination 284. Any examinations that had not been completed by the date of commencement would be discontinued at the transition time by the repeal of Part 2 of Chapter 7 of the BCIIP Act. 285. This item would operate to ensure that payments for expenses incurred in attending an examination could still be made after the transition time. This would mean that a person who has attended an examination prior to that time is not deprived of their entitlement to reimbursement because of the repeal of section 63 of the BCIIP Act and repeal of the BCI C&T Act. 286. Section 63 provides that a person who attends an examination as required by an examination notice is entitled to payment for reasonable expenses incurred by the person in attending the examination; not all the expenses actually incurred. Reasonable expenses include costs associated with travel and accommodation. The rules prescribing the calculation method, maximum amounts payable, and the required form and content of the application for reimbursement are set out in Division 3 of the Fair Work (Building Industry) Regulations 2015, which are saved by the operation of item 14 of Schedule 2 to the BCI C&T Act. Fair Work Legislation 56 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 287. From the transition time, a person seeking the payment of expenses would be required to apply in writing to the FWO and provide sufficient evidence to establish that they incurred the expenses. Item 329: Use of information or evidence obtained by the ABC Commissioner or an ABC Inspector 288. This item would clarify that the FWO or an FW Inspector, in the performance of their functions or exercise of their powers, would be able to use any information or evidence obtained by the ABC Commissioner or an ABC Inspector in performance of functions, or exercise of powers, under the BCIIP Act. 289. The ABC Commissioner's functions under current section 16 of the BCIIP Act include monitoring and promoting compliance with designated building laws. Further, under current subsection 70(1) the BCIIP Act, an ABC Inspector may exercise their compliance powers in relation to building matters to determine whether a designated building law is being, or has been, complied with, as well as for the purposes of a provision of another act conferring functions or powers on ABC Inspectors. Current section 5 defines 'designated building laws' as the Independent Contractors Act, the FW Act or the FW Transitional Act, or a Commonwealth industrial instrument. As such, item 329 would enable the FWO and FW Inspectors to use information the ABC Commissioner or ABC Inspector obtained in the performance of functions or exercise of powers under the Independent Contractors Act, the FW Act or the FW Transitional Act or a Commonwealth industrial instrument, as well as under just the BCIIP Act. 290. This would ensure that the FWO and FW Inspectors can rely on information or evidence already obtained to regulate the building and construction industry, enabling the FWO and building industry participants to save time and resources. 291. Subitem 329(2) would clarify that the use of information or evidence obtained by the ABC Commissioner or an ABC Inspector is subject to items 330 and 337. Item 330 would ensure the continued operation of section 106 of the BCIIP Act with modifications to restrict the FWO and members of the Office of the FWO from recording or disclosing information obtained under an examination notice or at an examination. Item 337 would provide that section 718 of the FW Act applies to information transferred to the FWO that section 105 of the BCIIP Act would have applied to and would also restrict the FWO and members of the Office of the FWO from disclosing protected information under section 718 of the FW Act. This would make clear that item 329 would not override provisions that would restrict the disclosure and recording of information. 292. The FWO and FW Inspectors would also be restricted in the use of this information by other laws. This would include, in the case of information obtained under an examination notice prior to the transition time, limitations because of the privileges and immunities provided under sections 102(2) and 103 of the BCIIP Act, whose effect House of Representatives 57 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission would be preserved by subsection 7(2) of the AI Act despite their repeal (see also item 344 in relation to subsection 7(2) of the AI Act). Item 330: Confidentiality of information obtained under an examination notice etc. 293. This item would operate to preserve the protected status of information acquired under Part 7, Chapter 2 of the BCIIP Act before the transition time. Information obtained compulsorily under an examination notice would continue to be treated as protected information by the FWO. 294. Protected information is defined in section 5 of the BCIIP Act to mean information that: • was disclosed or obtained under an examination notice or at an examination; • was obtained by the entrusted person, or by any other person, in the course of official employment; and • relates to a person other than the entrusted person. 295. An entrusted person is a person who has obtained protected information in the course of official employment. The note to subsection 106(1) provides that these confidentiality obligations continue to apply after the person ceases to be officially employed. 296. Currently, subsection 106(2) of the BCIIP Act prohibits an entrusted person from making a record of protected information or disclosing protected information, except in limited circumstances. The penalty for contravening this prohibition is imprisonment for 12 months. Subsection 106(3) sets out exceptions to the offence for entrusted persons who are designated officials. This exception does not apply if protected information is disclosed to any Minister and the disclosure is not authorised by section 18 (Minister may require reports relating to the ABC Commissioner's functions and powers) or section 20 (annual reports), or if the report referred to in either of those sections includes information relating to an individual's affairs. Subsection 106(4) sets out exceptions to the offence for entrusted persons who are not designated officials. A note to each of these subsections points out that a defendant bears an evidential burden in relation to the matter in the subsection and refers the reader to subsection 13.3(3) of the Criminal Code 1995. 297. This item would have the effect of making the FWO, staff of the Office of the FWO, a person assisting or engaged as a consultant to the FWO, and FW Inspectors designated officials (within the meaning of section 5 of the BCIIP Act). The item would also provide that references to the ABC Commissioner's functions and powers, and repealed provisions of the BCIIP Act, are taken to mean references to the FWO's functions and powers and the FW Act. The practical effect of this would be to enable entrusted persons to appropriately manage the confidentiality requirements of protected information. Fair Work Legislation 58 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 298. Additionally, though the ABC Commissioner, ABC Inspectors and various other members of the office of the ABC Commissioner would cease to be in official employment, the obligations under section 106 would continue to apply to them. This would seek to ensure protected information remains confidential. Item 331: Annual reports 299. This item would provide for appropriate transitional arrangements to deal with the ABC Commissioner's reporting obligations under section 20 of the BCIIP Act and section 46 of the PGPA Act. Current section 20 requires the ABC Commissioner to prepare and give to the Minister a report on the ABC Commissioner's activities during each financial year (annual report), and each quarter of the financial year (quarterly report). 300. Each quarterly report and annual report must contain details of the number, and type, of matters that were investigated by the ABC Commissioner during the reporting period and details of assistance and advice provided to building industry participants. It must also contain details of the extent to which the Building Code 2016 was complied with, and details of enforcement action undertaken by the ABC Commissioner, including legal expenses incurred, during the relevant reporting period. The report must also include details of directions given under sections 17 and 18, and details of delegations under section 19 of the BCIIP Act. 301. The Minister is required to table a copy of each quarterly report and annual report before each House of Parliament within 15 sitting days of receiving it. 302. Items 202 to 217 would remove the requirement for the ABC Commissioner to prepare a quarterly report after the transition time. 303. This item would make the FWO responsible for annual reporting in relation to the ABCC where the ABC Commissioner has not prepared and given an annual report to the Minister before the ABCC abolition time. The FWO would be required to report on the ABC Commissioner's activities during the relevant reporting period in an annual report they prepare for the Minister to present to Parliament under section 46 of the PGPA Act. 304. This would ensure that the Parliament can maintain oversight scrutiny of the activities of the ABC Commissioner and the administration of the building industry legislation. 305. As the reporting on the ABC Commissioner's activities would be included in a report referred to in section 686 of the FW Act, section 714A of the FW Act would provide that such a report could not include information relating to the affairs of an individual that the FWO obtained from the ABC Commissioner as a result of the operation of this Part. House of Representatives 59 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 332: Report to Parliament by Commonwealth Ombudsman 306. This item would make appropriate transitional arrangements to deal with the Commonwealth Ombudsman's reporting to Parliament regarding examinations conducted by the ABC Commissioner. Section 65 of the BCIIP Act requires the Commonwealth Ombudsman to review the exercise of the ABC Commissioner's examination powers and provide a report to the Parliament about examinations and reviews conducted during each quarter of the financial year, and any other information that the Ombudsman considers appropriate. 307. To provide for continued transparency and oversight of the use of the ABC Commissioner's coercive information gathering powers, this item would require that the report is provided at the time required (which is as soon as is practicable after the end of quarter of each financial year) regardless of when the ABCC transition time commences. Item 333: Designated officials not liable for conduct in good faith 308. Part 4 would repeal the definition of 'designated official' in section 5 of the BCIIP Act (see item 309). 'Designated official' is defined to include the ABC Commissioner, Deputy ABC Commissioner, an ABC Inspector, member of staff of the ABCC, and a person assisting or engaged as a consultant by the ABC Commissioner. This item would operate to preserve the protection of designated officials from liability arising from anything done in their official capacity before the ABCC abolition time. Item 334: Transfer of records before the ABCC abolition time Item 335: Transfer of records after the ABCC abolition time 309. These items would provide for the transfer of records or documents in the possession of the ABC Commissioner immediately before and after the ABCC abolition time to the FWO. Item 334 would enable the ABC Commissioner to begin transferring records or documents before the ABCC abolition time. Item 335 would require the records and documents be transferred to the FWO after the ABCC abolition time. 310. The purpose of these items would be to expedite the information transfer process to enable the Office of the FWO to continue any processes commenced by the ABCC - for example, litigation on foot and investigations - without any undue delay, as well as to enable it to effectually regulate the industry. This would be supported by item 329, which would make clear that the FWO and FW Inspectors could use any information or evidence obtained by the ABC Commissioner in the performance of their functions. Fair Work Legislation 60 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 336: Information provided to the Fair Work Ombudsman before the transition time 311. This item would make clear that where the ABC Commissioner provided information to the FWO in accordance with the BCIIP Act before the transition time (for example, in accordance with section 105) and the information was lawfully obtained by the ABC Commissioner, the information is taken to have been lawfully obtained by the FWO. 312. This item would ensure that the FWO can rely on information transferred to it prior to the transition time in the performance of its functions and exercise of its powers. Item 337: Disclosure of information by the Office of the Fair Work Ombudsman 313. This item would set out transitional arrangements regarding the disclosure of information by the Office of the FWO. It would ensure that information transferred to the FWO, a FW Inspector or staff member of the Office of the FWO because of Part 3 is captured by section 718 of the FW Act. 314. This item would provide that section 718 of the FW Act applies to information to which section 105(1)(a) to (g) of the BCIIP Act applies, with the effect that the disclosure requirements set out in section 718 of the FW Act would apply to that information after the transition time. 315. Subitem 337(2) would restrict what information may be disclosed under section 718. It would provide that the FWO must not disclose or authorise the disclosure of protected information (within the meaning of the BCIIP Act) under section 718. This information would continue to be protected information because of item 330. The intention behind this restriction is to ensure that the security of sensitive information would not be reduced by its transition to the FWO. Item 338: Transfer of assets and liabilities before the ABCC abolition time Item 339: Transfer of assets and liabilities at the ABCC abolition time 316. These items would provide for the transfer of assets and liabilities held by the ABCC before and at the ABCC abolition time. 317. Item 338 would provide that after the transition time but before the ABCC abolition time, the Minister has the power to transfer some of the ABCC's assets and or liabilities to the Department. This would allow for some limited flexibility, should it become apparent that some or all the assets and / or liabilities would be more appropriately transferred to the Department. Subitem (3) would provide that the Secretary of the Department would have to make the necessary arrangements to give effect to the transfer. A determination made under this item would be exempt from disallowance under the Legislation Act. House of Representatives 61 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission 318. Item 339 would provide that, at the ABCC abolition time, any remaining assets and liabilities of the ABCC are transferred to the Office of the FWO. Subitem (2) would provide that the FWO would have to make the necessary arrangements to affect the transfer. The note would provide an example of the kinds of arrangements that must be made. Transferring assets and liabilities from the ABCC to the FWO would maintain appropriate governance and accountability arrangements for the Commonwealth's assets and liabilities after the ABCC abolition time and enables the FWO to discharge its obligations arising from the transition. Item 340: Compensation for loss of office 319. Statutory office holders are entitled to compensation for loss of office if the office holder's appointment is terminated prior to the expiry of the term of the office holder's appointment in accordance with the Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018. 320. This item would provide that the FWO, on behalf of the Commonwealth, would be responsible for making any payment that is required under the Determination because of the abolition of the offices of the ABC Commissioner and Deputy ABC Commissioners by item 310. This would ensure that statutory office holders receive any entitlements that may be payable by law. Item 341: Protected disclosures 321. Subparagraphs 337A(1)(b)(iii), (iiia) and (iv) of the RO Act concern disclosures by whistleblowers and list which disclosures would be protected. 322. This item would provide that, despite the repeal of those subparagraphs (per item 314), information disclosed to those officials before the transition time would continue to be protected under the whistleblower provisions. Item 342: Transfer of appropriation 323. This item would provide that, after the ABCC abolition time, references in an Appropriation Act to the ABCC are to be read as references to the FWO. The purpose of this is to ensure that the FWO can discharge the ABCC's liabilities and make the payments Part 4 would make the FWO responsible for without impacting the resources it requires for undertaking its other functions. 324. Under s 683(1) of the FW Act, the FWO may, in writing, delegate all or any of the FWO's powers under any Act to a member of the staff of the Office of the FWO or to a FWO Inspector. This would enable the FWO to delegate the FWO's functions under Part 4, including in relation to making payments it would be required to make. Fair Work Legislation 62 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission Item 343: Compensation for acquisition of property 325. This item would provide that to the extent the operation of Part 3 results in an acquisition of property from a person otherwise than on just terms contrary to section 51(xxxi) of the Constitution, the Commonwealth would be liable to pay a reasonable amount of compensation to the person. A person would be able to institute proceedings against the Commonwealth should the person and the Commonwealth be unable to agree on the sum that should be paid. This would prevent the potential invalidity of the legislation and ensure that no person suffers any loss of property otherwise than on just terms because of the operation of the transitional provisions of Part 4. Item 344: No limitation of subsection 7(2) of the Acts Interpretation Act 1901 326. This item would provide that this Division of Part 3 does not operate to limit subsection 7(2) of the AI Act. 327. Subsection 7(2) of the AI Act preserves the previous operation of the affected Act or part of the Act, as well as accrued rights, privileges, obligations, or liabilities beyond the repealing of the Act, or the part of the Act, under which they arose. This would mean that any immunity, right or privilege that current BCIIP Act provisions provide a person with respect to information they give (including under sections 102 to 104) would continue in effect after the repeal or amendment of those provisions. Any immunity, right or privilege that these provisions provide would continue to apply to information transferred to the FWO and the FWO's ability to use this information in the performance of its functions and exercise of its powers. 328. Subitem 344(2) would clarify that subitem operates subject to item 322 and subitem 345(2). Item 322 would prevent an application from being made after the transition time under subsection 81(1) of the FSC Act in relation to a contravention of a civil remedy provision that was repealed and would displace the operation of s 7 of the AI Act. Subitem 345(2) would enable rules about transitional matters to provide that they apply despite subsection 7(2) of the AI Act. Item 345: Rules about transitional matters 329. This item would provide the Minister with a rule-making power for transitional matters relating to repeals or amendments made by Part 3 or the enactment of Part 3. These rules would be able to be made to have retrospective effect on the operation of the repealed provisions of the BCIIP Act. 330. This rule-making power, including the ability to make retrospective rules, would be necessary to provide the Minister with the discretion and flexibility to set out matters, processes, and circumstances not provided for in Part 3. This flexibility would allow the Commonwealth to deal with any unforeseen developments that could require immediate or prompt changes. This is particularly important to ensure a smooth transition, given the importance of ensuring the building and construction industry is House of Representatives 63 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 3 - Abolition of the Australian Building and Construction Commission appropriately regulated. Any rules would not be exempt from disallowance under the Legislation Act and would therefore be subject to Parliamentary scrutiny. Any rules would also not be exempt from the sunsetting regime. 331. While the rules could be made to have retrospective application, subitem 345(3) would prescribe a limit on the transitional rules which could be made and provides the Minister would not be able make rules which: • create an offence; • provide powers of arrest or detention or entry, search or seizure; • impose a tax; • set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; or • directly amend the text of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. 332. Additionally, subitem 345(5) would make clear that if rules are made with retrospective commencement, a person could not be convicted of an offence or ordered to pay a pecuniary penalty in relation to conduct before the registration date. Consequently, any rules would not be able to detrimentally affect any persons due to their retrospective application. Fair Work Legislation 64 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 4 - Objects of the Fair Work Act PART 4--OBJECTS OF THE FAIR WORK ACT Overview 333. This Part would introduce job security and gender equity into the object of the FW Act. It would place these considerations at the heart of the FWC's decision-making, and support the Government's priorities of delivering secure, well-paid jobs and ensuring women have equal opportunities and equal pay. 334. In accordance with established principles of statutory interpretation, the FW Act is required to be interpreted in a way that would best achieve the object of the FW Act wherever possible (see section 15AA of the AI Act). The FWC is also required under existing paragraph 578(a) of the FW Act to take into account the objects of the FW Act when performing functions or exercising powers under the FW Act. This includes, for example, the FWC performing functions or exercising powers in relation to dispute resolution, including arbitration, setting terms and conditions in modern awards and approving enterprise agreements. 335. This Part would also introduce improved access to secure work and gender equity into the modern awards objective in section 134 of the FW Act as matters the FWC would be required to take into account when setting terms and conditions in modern awards. This Part would also introduce gender equity into the minimum wages objective in section 284 of the FW Act as a matter the FWC would be required to take into account when setting minimum wages. Amendments to the Fair Work Act 2009 Item 346: Paragraph 3(a) 336. The existing paragraph 3(a) sets out one of the means by which the object of the FW Act is achieved. This item would amend that means to add job security and gender equity as considerations. 337. The reference to promoting job security recognises the importance of employees and job seekers having the choice to be able to enjoy, to the fullest extent possible, ongoing, stable and secure employment that provides regular and predictable access to beneficial wages and conditions of employment. The reference to promoting gender equity recognises the importance of people of all genders having equal rights, opportunities and treatment in the workplace and in their terms and conditions of employment, including equal pay. 338. Job security and gender equity would sit alongside existing considerations in the object of the FW Act, such as providing workplace relations laws that are flexible for business, assisting employees to balance their work and family responsibilities, and achieving productivity and fairness (see existing paragraphs 3(a), (d) and (f)). House of Representatives 65 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 4 - Objects of the Fair Work Act Item 347: After paragraph 134(1)(a) 339. The existing subsection 134(1) sets out the modern awards objective, requires the FWC to ensure modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions, taking into account a range of factors. 340. This item would amend the modern awards objective to require the FWC to also take into account: • the need to improve access to secure work across the economy (new paragraph 134(1)(aa)); and • the need to achieve gender equity in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation (new paragraph 134(1)(ab)). 341. The FWC would be required to take these new factors into account when performing or exercising its modern awards powers under the existing Part 2-3 of the FW Act (which relates to modern awards) and the existing Part 2-6 of the FW Act (which relates to minimum wages) as far as it relates to modern award minimum wages (existing subsection 134(2)). Item 348: Paragraph 134(1)(e) 342. The existing paragraph 134(1)(e) requires the FWC to take into account the principle of equal remuneration for work of equal or comparable value as part of the modern awards objective. This item would repeal existing paragraph 134(1)(e), because those considerations would be included as part of the new paragraph 134(1)(ab). Item 349: After paragraph 284(1)(a) 343. The existing subsection 284(1) sets out the minimum wages objective, which requires the FWC to establish and maintain a safety net of fair minimum wages, taking into account a range of factors. 344. This item would amend the minimum wages objective to require the FWC to also take into account: 345. the need to achieve gender equity, including by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and addressing gender pay gaps. 346. The FWC would be required to take this new factor into account when performing or exercising its functions or powers under the existing Part 2-6 of the FW Act (which relates to minimum wages) and existing Part 2-3 of the FW Act (which relates to modern awards) as far as it relates to modern award minimum wages (existing subsection 284(2)). Fair Work Legislation 66 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 4 - Objects of the Fair Work Act Item 350: Paragraph 284(1)(d) 347. The existing paragraph 284(1)(d) requires the FWC to take into account the principle of equal remuneration for work of equal or comparable value as part of the minimum wages objective. This item would repeal existing paragraph 284(1)(d), because those factors would be included as part of the new paragraph 284(1)(aa). House of Representatives 67 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 5 - Equal remuneration PART 5--EQUAL REMUNERATION Amendments to the Fair Work Act 2009 Item 351: Section 12 (at the end of the definition of equal remuneration for work of equal or comparable value) 348. Section 12 of the FW Act contains the Dictionary. This item would insert a new note after the definition of 'equal remuneration for work of equal or comparable value' with a cross reference to new subclauses 302(3A) to (3C), (4) and (4A). This would direct the reader to understand that wherever the definition of 'equal remuneration for work of equal or comparable value' is considered, the amendments to the equal remuneration provisions of the FW Act inserted by the Bill should also be taken into account. Item 352: After subsection 157(2A) 349. Subsection 157(2) of the FW Act currently sets out the requirements for the FWC to make a determination varying modern award minimum wages. This includes the requirement that the FWC be satisfied that the variation is justified by work value reasons, which are defined in subsection 157(2A). 350. This item would introduce subclause 157(2B) to clarify that the FWC's consideration of work value reasons must be free of assumptions based on gender and must include consideration of whether historically the work being assessed has been undervalued because of such assumptions. This item is modelled after subsection 248(3) and paragraph 248(4)(c) of the Industrial Relations Act 2016 (Qld) and would ensure that the FWC's consideration of work value applications cannot be affected by gender- based assumptions about the value of work. 351. In the Equal Remuneration Decision 2015, the Full Bench of the FWC expressed a view that the definition of work value reasons would be sufficiently broad to allow a party to advance a claim that minimum rates of pay in a modern award undervalue work due to historical gender-related reasons.5 This item would have the effect of confirming the Full Bench's view in the FW Act. Item 353: Subsection 302(3) 352. This item would repeal existing subsection 302(3) of the FW Act and replace it with a new clause. Existing subsection 302(3) provides that the FWC may only make an ERO on application by certain parties. New paragraph 302(3)(a) would provide the FWC with the discretion to make an ERO on its own initiative, or on application by the categories of parties who have standing under the existing subsection 302(3). For example, this clause would provide the FWC with greater flexibility to respond if it finds that there is not equal remuneration for work of comparable value as part of an 5 (2015) 256 IR 362, [292]. Fair Work Legislation 68 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 5 - Equal remuneration existing matter, such as an application to vary modern award minimum wages on work value grounds. Item 354: After subsection 302(3) 353. This item would insert new subclauses 302(3A)-(3C) after subsection 302(3). Subclause 302(3A) would outline gender equity considerations which may be taken into account by the FWC when considering whether there is equal remuneration for work of equal or comparable value. This item incorporates key elements of the equal remuneration principle set out in the Industrial Relations Act 2016 (Qld) to guide the FWC's consideration of equal remuneration cases. 354. Subclause 302(3A) would set out a list of matters which the FWC may take into account when assessing whether there is equal remuneration. The FW Act is currently silent as to how equal remuneration should be assessed, and these amendments would provide further guidance to the FWC on this matter. 355. The FWC has interpreted the current equal remuneration provisions of the FW Act as requiring that it must be satisfied that a group of employees covered by an equal remuneration application do not receive equal remuneration for work of equal or comparable value compared to another group of employees of the opposite gender.6 This requirement for a reliable 'male comparator' group has been interpreted as a necessary threshold test which parties must satisfy before the FWC will determine an application for an ERO. The combined effect of new paragraph 302(3A)(a) and subclause 302(3B) would be to remove this requirement to establish a reliable 'male comparator' as a jurisdictional prerequisite to making an ERO. The FWC would still have the discretion to take into account comparisons within and between occupations and industries in order to establish whether work has been undervalued on the basis of gender. 356. Subclause 302(3C) would clarify that the FWC is not required to find that there is gender-based discrimination in order to establish that work has been undervalued. Item 355: Subsection 302(4) 357. Subsection 302(4) of the FW Act currently provides that the FWC must take into account orders and determinations made by the FWC in Annual Wage Reviews, and the reasons for those orders and determinations, when deciding whether to make an ERO. 358. This item would amend subsection 302(4) to provide that the FWC must take these two matters into account in deciding whether there is equal remuneration for work of equal or comparable value for the purposes of the FW Act (rather than just in making an ERO). This also reflects that the amendments at Item 35 would remove the FWC's discretion to decide whether to make an ERO in most circumstances. Therefore, the appropriate stage for the FWC to consider determinations made in Annual Wage 6 Equal Remuneration Decision 2015 (2015) 256 IR 362, [239]. House of Representatives 69 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 5 - Equal remuneration Reviews would be when deciding whether there is equal remuneration for work of equal or comparable value. Item 356: After subsection 302(4) 359. This item would insert subclause 302(4A) to provide, for the avoidance of doubt, that nothing in section 302 limits what considerations the FWC may take into account when deciding whether there is equal remuneration for work of equal or comparable value. The amendments to subsection 302(3) at Item 35 would provide further guidance to the FWC when determining EROs, without limiting its power to consider other matters which might be relevant. Item 357: Subsection 302(5) 360. This item would repeal existing subsection 302(5) of the FW Act and replace it with a new subsection. Existing subsection 302(5) provides the FWC with discretion to make an ERO if it is satisfied that, for the employees to whom an ERO would apply, there is not equal remuneration for work of equal or comparable value. 361. The new subsection, combined with subsection 302(1), would instead have the effect that: • If hearing an application for an ERO--FWC would be required to make an ERO if it is satisfied that there is not equal remuneration for work of equal or comparable value. • If the FWC were considering making an ERO on its own initiative--FWC would have a discretion as to whether to make an ERO if it finds that there is not equal remuneration for work of equal or comparable value. For example, if such a finding were reached as a consequence of evidence raised in a work value application, the FWC may decide that a variation to the modern award minimum wages, justified on work value reasons, would increase wages such that there is no longer unequal remuneration, and that an ERO is therefore not required. Item 358: After subclause 26(3) of Part 5 of Schedule 1 362. This item would apply the amendments to section 157 of the FW Act, as set out at Item 352, to any determinations made after commencement with respect to any four yearly reviews of modern awards under the now-repealed section 156 of the FW Act which are still in progress. Fair Work Legislation 70 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels PART 6--EXPERT PANELS Overview 363. This Part would amend the FW Act to provide for the constitution of new Expert Panels within the FWC to exercise certain functions in relation to pay equity and the Care and Community Sector. The President will be able to give directions under section 582 as to the manner in which the new Expert Panels perform functions, exercise powers or deal with matters in the same way as such directions can be given generally. 364. This would ensure the FWC has the expertise it needs to better assess pay and conditions for people working in the Care and Community Sector and other women workers. The expertise required for the new Expert Panels would be provided by either part-time Expert Panel members or appropriately qualified FWC members. Amendments to the Fair Work Act 2009 Item 59: At the end of subsection 302(1) 365. Subsection 302(1) provides that the FWC may make any ERO it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value. 366. This item would be a consequential amendment to reflect the changes made by proposed subsections 617(7) and (10) at item 371, which would provide that an ERO made under section 302 (other than an ERO relating to the Care and Community Sector) and an ERO made under section 302 in relation to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make that ERO. Item 360: Paragraph 575(2)(d) 367. Paragraph 575(2)(d) provides that the FWC consists of 6 Expert Panel members. 368. This item would amend paragraph 575(2)(d) in relation to Expert Panel members to be framed in the same way as paragraphs 575(2)(b) and (c) in relation to Deputy Presidents and Commissioners of the FWC. 369. This item would provide flexibility to the FWC to be able to consist of more than 6 Expert Panel members if Expert Panels for pay equity, the Care and Community Sector or pay equity in the Care and Community Sector are established. Item 361: Subsection 616(1) Item 362: After subsection 616(1) 370. Subsection 616(1) provides that a modern award must be made under Part 2-3 of the FW Act by a Full Bench as defined by section 12. House of Representatives 71 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels 371. These items would be consequential amendments to reflect the change made by proposed subsection 617(8) in item 371, which would provide that a modern award made under subsection 157(1) relating to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make that modern award. Item 363: Subsection 616(3B) Item 364: After subsection 616(3B) 372. Subsection 616(3B) provides that a determination that revokes a modern award under Division 5 of Part 2-3 of the FW Act must be made by a Full Bench as defined by section 12. 373. These items would be consequential amendments to reflect the change made by proposed subsection 617(8) in item 371, which would provide that a determination made under subsection 157(1) relating to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make that determination. Item 365: Subsection 616(3C) Item 366: After subsection 616(3C) Item 367: Subsection 616(3D) Item 368: Subsection 616(3D) (note) Item 369: After subsection 616(3D) 374. Subsection 616 (3C) provides that certain determinations that vary a modern award under Division 5 of Part 2-3 of the FW Act must be made by a Full Bench as defined by section 12. 375. Subsection 616(3D) provides that the President may direct a single FWC member to make a determination varying a modern award in certain circumstances. 376. These items would be consequential amendments to reflect the change made by proposed subsections 617(6), (8), (9) in item 371, which would provide that: • a determination made under subsection 157(2) to vary modern award minimum wages justified by work value reasons (other than such a determination relating to the Care and Community Sector) if the President considers substantive gender pay equity matters might require the making of that determination; • a determination or modern award made under subsection 157(1) relating to the Care and Community Sector; and Fair Work Legislation 72 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels • a determination made under subsection 157(2) relating to the Care and Community Sector, must be made by an Expert Panel constituted for the purpose of deciding whether to make that determination or modern award. 377. These items are also consequential amendments to reflect the change made by proposed subsection 617(11) in item 371, which would provide that the President may direct an Expert Panel constituted for the purpose of performing a function of exercising a power under sections 159, 160 or 161 (about variations of modern awards) to perform the function or exercise the power. Item 370: Subsection 617(1) (note) 378. Subsection 617(1) provides that an annual wage review must be conducted under Part 2-6 of the FW Act by an Expert Panel constituted for the purposes of the review. 379. This item would be a consequential amendment to the note in subsection 617(1) to indicate the constitution of an Expert Panel for the purposes of an annual wage review under subsection 620(1) is separate from the constitution of an Expert Panel for pay equity, the constitution of an Expert Panel for the Care and Community Sector and the constitution of an Expert Panel for pay equity in the Care and Community Sector which would be inserted by item 374, under proposed subsections 620(1B), (1C) and (1D). Item 371: At the end of section 617 380. This item would add requirements that the following determinations, orders or awards are made by an Expert Panel constituted under proposed subsections 620(1B), (1C) or (1D) for the purposes of making that determination, order or award: • a determination under subsection 157(2) (other than such a determination relating to the Care and Community Sector) if the President considers substantive gender pay equity matters might require the making of that determination; • an ERO made under section 302 (other than an ERO relating to the Care and Community Sector); • a determination or modern award made under subsection 157(1) relating to the Care and Community Sector; • a determination made under subsection 157(2) relating to the Care and Community Sector; and • an ERO made under section 302 relating to the Care and Community Sector. 381. The item would add a note after each subsection indicating the relevant constitution for an Expert Panel for the relevant purpose. 382. It is intended that the relevant Expert Panel would both consider an application for a determination, order or award and, if satisfied, make the determination, order or award. House of Representatives 73 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels 383. The item would also add a subsection which provides that the President may direct an Expert Panel constituted for the purpose of performing a function or exercising a power under section 159, 160 or 161 relating to other variations of modern awards to perform the function or exercise the power. 384. The 'Care and Community Sector' includes the aged care, early childhood education and care and disability care sectors. This is not intended to be an exhaustive list. 385. Without limiting the factors that the President may take into account when considering whether substantive gender pay equity matters might require the making of a determination, they may include whether it relates to work that is performed in a female dominated industry, sector or occupation. Item 372: At the end of Subdivision A of Division 4 of Part 5-1 of Chapter 5 Section 617A--President may direct investigations and reports 386. This subitem would add new section 617A to allow the President to give a direction under section 582 requiring that a matter that is relevant to a function of an Expert Panel for pay equity, an Expert Panel for the Care and Community Sector or an Expert Panel for pay equity in the Care and Community Sector be investigated, and that a report about the matter be prepared. 387. New section 617A has been drafted to closely match the language in section 290 of the FW Act. 388. It is intended that a direction may encompass broad matters, rather than being restricted to a matter before an Expert Panel. 389. This item would include a note to new subsection 617A(1) that is intended to indicate to readers that the proposed section is to be interpreted broadly to refer to, for example, issues of gender pay equity generally. Section 617B--Research must be published 390. This subitem would add new section 617B to require the FWC to publish a report directed to be prepared under new section 617A on the FWC's website or by any other means that the FWC considers appropriate so that submissions can be made addressing issues covered by the report. 391. New section 617B has been drafted to closely match the language in section 291 of the FW Act. Item 373: Subsections 620(1) and (1A) 392. This item would amend subsections 620(1) and (1A) to match the language of new subsections 620(1B), (1C) and (1D) and to provide that any constitution of an Expert Panels under subsections 620(1) and (1A) is separate from any constitution of an Expert Panel made under new subsections 620(1B), (1C) and (1D). Fair Work Legislation 74 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels Item 374: After subsection 620(1A) 393. This item would insert the constitution of an Expert Panel for pay equity, the constitution of an Expert Panel for the Care and Community Sector and the constitution of an Expert Panel for pay equity in the Care and Community Sector. 394. The constitution of an Expert Panel for pay equity must include the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel and at least two Expert Panel members or other FWC members who have knowledge of, or experience in, gender pay equity and / or anti-discrimination. 395. The constitution of an Expert Panel for the Care and Community Sector must include the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel and at least two Expert Panel members or other FWC members who have knowledge of, or experience in, the Care and Community Sector. 396. The constitution of an Expert Panel for pay equity in the Care and Community Sector must include the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel, at least one Expert Panel member or other FWC member who has knowledge of, or experience in gender pay equity and / or anti- discrimination and at least one Expert Panel member or other FWC member who has knowledge of, or experience in the Care and Community Sector. 397. The President may determine whether a full time FWC member appointed to an Expert Panel has the relevant knowledge or experience. 398. This item would also provide that each Expert Panel may consist of other FWC members as the President considers appropriate, subject to new subsection 620(2A) that would be inserted by item 376. Item 375: Before subsection 620(2) Item 376: After subsection 620(2) 399. These items would insert a requirement that an Expert Panel for pay equity, an Expert Panel for the Care and Community Sector or an Expert Panel for pay equity in the Care and Community Sector consists of a majority of members who have the knowledge or experience required under new paragraph 620(1B)(b), (1C)(b) or (1D)(b) or (c) (as the case may be). Item 377: Paragraphs 620(3)(b) and (5)(b) 400. The amendments which would be inserted by this item apply if the President has appointed a person to be the Chair of an Expert Panel for pay equity, an Expert Panel for the Care and Community Sector or an Expert Panel for pay equity in the Care and Community Sector. House of Representatives 75 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels 401. This item would prescribe that the Chair is responsible for managing that Expert Panel in performing the functions and exercising the powers referred to in section 617. 402. Subsection 620(4) provides that a decision of the majority of the FWC members of an Expert Panel prevails. This item would prescribe that if there is no majority, the decision of the Chair prevails. Item 378: Paragraph 622(2)(a) 403. Paragraph 622(2)(a) provides the requirements of the composition of an Expert Panel to continue to deal with a matter without an unavailable member as defined by subsection 622(1). 404. This item would be a consequential amendment to indicate that the requirements of the composition of an Expert Panel to continue to deal with a matter without the unavailable member are separate from the requirements of composition of an Expert Panel for pay equity, an Expert Panel for the Care and Community Sector and an Expert Panel for pay equity in the Care and Community Sector to continue to deal with a matter without an unavailable member under proposed paragraph 622(2)(aa) that would be inserted by item 379. Item 379: After paragraph 622(2)(a) 405. This item would provide the requirements of the composition of an Expert Panel for pay equity, an Expert Panel for the Care and Community Sector and an Expert Panel for pay equity in the Care and Community Sector to continue to deal with a matter without an unavailable member as defined by subsection 622(1). 406. This item would prescribe that the Expert Panel has at least 3 FWC members of whom at least one is the President, a Vice President or a Deputy President and a majority of the members must have the knowledge or experience required under new paragraph 620(1B)(b), (1C)(b) or (1D)(b) or (c) (as the case may be). Item 380: At the end of section 622 407. This item would prescribe that the President in directing another FWC member to form part of an Expert Panel constituted under subsection 620(1B), (1C) or (1D) must give preference to directing an FWC member that has the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b) or paragraphs (1D)(b) and (c) (as the case may be). 408. Such a reconstitution may result in a minority of members of an Expert Panel having the requisite knowledge or experience. This would not affect the capacity of an Expert Panel constituted under new proposed subsections of section 617 that would be inserted by item 371 to make a determination, order or modern award, as the case may be. This is because the constitution of the relevant Expert Panels, as provided by the new Fair Work Legislation 76 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 6 - Expert panels subsections of section 620 that would be inserted by item 374, may be affected by section 622 in the event of the need for reconstitution. Item 381: At the end of subsection 627(4) 409. This item includes gender pay equity, anti-discrimination and the Care and Community Sector in the one or more fields the Governor General must be satisfied that a person has knowledge of, or experience in, before the Governor General appoints the person as an Expert Panel member. House of Representatives 77 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 7 - Prohibiting pay secrecy PART 7 --PROHIBITING PAY SECRECY Amendments to the Fair Work Act 2009 Item 381: Section 321 (after the paragraph beginning "Division 3") 410. This item would amend the guide to Part 2-9--Other terms and conditions of employment, to provide that new Division 4 is about the disclosure of remuneration and prohibiting pay secrecy terms. Item 382: In the appropriate position in Part 2-9 of Chapter 2 411. This item would insert a new Division 4--Prohibiting pay secrecy in Part 2-9 of the FW Act. Clause 333B--Employees not subject to pay secrecy 412. New clause 333B would create new workplace rights in the FW Act, allowing employees to ask one another about and to disclose their remuneration and relevant conditions. Employees would be able to use this information to assess whether their remuneration is fair and comparable to that of other employees in the same workplace or industry. 413. New clause 333B would provide that an employee may: • by subclause 333B(1)--disclose, or not disclose, their remuneration and any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes; and • by subclause 333B(2)--ask any other employee (whether employed by the same employer or a different employer) about the other employee's remuneration, and any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes. 414. Subclause 333B(2) would not compel an employee to make a disclosure in response to another employee seeking information about their remuneration or the terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes. The right to not make a disclosure (including when asked by a colleague) is protected by subclause 333B(1). 415. A non-exhaustive example provided for paragraph 333B(1)(b) would include the number of hours that the employee works. This is because two employees working in the same role could earn the same amount, but one employee works full-time and the other employee works part-time, meaning that in fact their remuneration is not fair and comparable. 416. New subclause 333B(3)(a) would provide that the rights introduced in subclauses 333B(1) and (2) would constitute workplace rights, within the meaning of Fair Work Legislation 78 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 7 - Prohibiting pay secrecy section 341 of the FW Act. This would extend the protection against adverse action provided by section 340 of the FW Act to these rights. 417. New subclause 333B(3)(b) would provide that a person would remain entitled to exercise the workplace rights in subclauses 333B(1) and (2) even after they cease to be an employee of a certain workplace. This is to clarify that (subject to the application provisions), employees can continue to choose to disclose their past remuneration even if they are no longer employed by the same employer. Clause 333C--Pay secrecy terms to have no effect 418. New clause 333C would provide that terms of a contract of employment or a fair work instrument that are inconsistent with subclause 333B(1) or (2) would have no effect. 419. This clause would prevent employers from enforcing pay secrecy clauses in employment contracts and fair work instruments. This clause would work alongside existing sections of the FW Act which provide certain terms of awards and agreements have no effect, including section 137 (for modern awards), paragraph 253(1)(b) (for enterprise agreements) and section 356 (workplace instruments, agreements, or arrangements (whether written or unwritten)). Clause 333D--Prohibition on pay secrecy terms 420. In addition to new clause 333C, new clause 333D would prohibit employers from including pay secrecy clauses in new employment contracts and other written agreements where the contract or agreement includes a term that is inconsistent with the workplace rights raised by new subclauses 333B(1) or (2). 421. Many Australian workplaces have voluntarily moved to removing pay secrecy clauses from their employment contracts. New clauses 333C and 333D would ensure that all new employment contracts and written agreements do not contain pay secrecy terms. Item 384: Subsection 539(2) (after table item 10A) 422. This item would add contravention of clause 333D to the table of civil remedy provisions set out at subsection 539(2) of the FW Act. The new table item would provide that an employee, prospective employee, employee organisation or an inspector can bring an action for an alleged contravention of clause 333D in a federal court or eligible State or Territory court. The maximum civil penalty for a contravention would be 60 penalty units, or 600 penalty units for serious contraventions. House of Representatives 79 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work PART 8--PROHIBITING SEXUAL HARASSMENT IN CONNECTION WITH WORK Overview 423. Part 8 of Schedule 1 to the Bill would implement recommendation 28 of the Respect@Work Report by prohibiting sexual harassment in connection with work in the FW Act. The prohibition would apply broadly to protect workers, prospective workers and persons conducting businesses or undertakings. Principals would, in some circumstances, also be vicariously liable for acts of their employees or agents. 424. The prohibition would be supported by a new dispute resolution framework, modelled on the compliance framework in the FW Act that applies to general protections dismissal disputes. In most cases, the FWC would first deal with a dispute by conciliation or mediation. If the dispute remained unsettled, the parties could proceed to consent arbitration or make an application to a Federal Court. 425. The FWC would also be able to make stop sexual harassment orders to protect applicants from future harm. To avoid duplication and streamline application processes, Part 8 would merge the existing stop sexual harassment order jurisdiction into new Part 3-5A--Prohibiting sexual harassment in connection with work. Consequential amendments would also be made to repeal amendments made by the Respect at Work Act in relation to stop sexual harassment orders. The new stop sexual harassment order jurisdiction would broadly operate in the same way as these provisions, with some differences to ensure alignment with the new prohibition. The implementation of recommendation 29 of the Respect@Work Report to introduce a 'stop sexual harassment order' into the FW Act would be unaffected. 426. Part 8 would provide flexibility for applications to be made jointly by one or more aggrieved persons against one or more perpetrators or principals and would enable an industrial association to represent an aggrieved person or persons. 427. Part 8 would also insert anti-double dipping provisions to prevent a person from obtaining multiple remedies in relation to the same conduct. 428. Part 8 would rely on the external affairs power and would protect all Australian workers, prospective workers and persons conducting businesses or undertakings (subject to some limitations in relation to the Defence Force, Australia's security agencies and the Australian Federal Police). 429. Nothing in Part 8 would prevent the concurrent operation of State and Territory anti- discrimination laws and--to the extent they deal with sexual harassment--occupational health and safety laws. Fair Work Legislation 80 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work Division 1--Main amendments Amendments to the Fair Work Act 2009 Item 385: After subsection 6(6) 430. This item would add a reference to Part 3-5A to the section setting out the key elements of Chapter 3 of the FW Act. Chapter 3 deals with rights and responsibilities of employees, employers, organisations, etc. Item 386: Subsection 9(5B) Item 387: Subsection 9(5B) Item 388: Section 12 (definition of sexually harassed at work) Item 389: Section 12 (definition of sexually harassed at work) Item 395: Subsection 539(2) (table, subheading relating to Part 6-4B) Item 399: Paragraph 576(1)(q) Item 405: Paragraph 675(2)(j) Item 406: Subparagraph 712AA(1)(a)(v) Item 411: Part 6-4B (heading) Item 412: Section 789FA Item 413: Section 789FA Item 414: Division 2 of Part 6-4B (heading) Item 415: Section 789FC (heading) Item 416: Subsection 789FC(1) Item 417: Section 789FD (heading) Item 418: Subsection 789FD(2A) Item 419: Section 789FF (heading) Item 420: Subsection 789FF(1) Item 421: Section 789FG (heading) Item 422: Section 789FH (note) Item 423: Section 789FH (note) House of Representatives 81 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 431. These items would repeal amendments made by the Respect at Work Act in relation to stop sexual harassment orders under Part 6-4B of the FW Act. These amendments are consequential to amendments that would merge the stop sexual harassment order jurisdiction into new Part 3-5A. Item 388: Section 12 Item 390: Section 12 Item 392: Section 12 432. These items would insert the following signpost definitions into the Dictionary at section 12 of the FW Act: • 'aggrieved person' in relation to an alleged contravention of the new prohibition on sexual harassment in connection with work would be defined in subsection 527F(1). • 'sexual harassment court application' would be defined in subsection 527T(2). • 'sexual harassment FWC application' would be defined in subsection 734A(3). • 'stop sexual harassment order' would be defined in paragraph 527F(1)(a). • 'worker' in a business or undertaking would be defined in subsection 527D(3). Item 391: Section 12 (before paragraph (a) of the definition of worker) 433. This item would amend the existing definition of worker in the Dictionary at section 12 of the FW Act to clarify that in Part 3-5A, worker is defined in subsection 527D(2). Item 393: After Part 3-5 434. This item would inset Part 3-5A into the FW Act, which prohibits sexual harassment in connection with work. Part 3-5A--Prohibiting sexual harassment in connection with work Division 1--Introduction Clause 527A Guide to this Part 435. Clause 527A would provide a guide to Part 3-5A, setting out the prohibition on sexual harassment and the dispute resolution process. Clause 527B Meaning of employee and employer 436. Clause 527B would clarify that references to employee and employer in Part 3-5A have their ordinary meanings. This means, for example, that references to employer and employee in the vicarious liability provision are not references only to national system employers and employees. Fair Work Legislation 82 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work Clause 527C Object of this Part 437. Clause 527C would provide that the object of Part 3-5A is to give effect, or further effect, to Australia's international treaty obligations by prohibiting sexual harassment of workers, persons seeking to become workers and persons conducting businesses or undertakings, and providing remedies when that happens. This would make clear that Part 3-5A is supported by the external affairs power in reliance on the treaties listed in clause 527C. Division 2--Prohibiting sexual harassment in connection with work Clause 527D Prohibiting sexual harassment in connection with work Prohibition 438. Subclause 527D(1) would set out the new prohibition on sexual harassment. It is modelled on subsection 28B(6) of the SD Act, but is slightly broader as it extends to prospective workers (prospective workers are separately protected by subsection 28B(1)-(4) of the SD Act). 439. The subclause would provide that a person (the first person) must not sexually harass another person (the second person) who is: • a worker in a business or undertaking; • seeking to become a worker in a particular business or undertaking; or • a person conducting a business or undertaking; if the harassment occurs in connection with the second person being a worker, person seeking to become a worker in a particular business or undertaking, or a person conducting a business or undertaking. 440. The prohibition would include sexual harassment perpetrated by third parties, such as customers or clients, for example. Sexual harassment of third parties by workplace participants (e.g. by a worker against a customer) is prohibited under the SD Act and is enforceable via the compliance framework that applies to contraventions of that Act. 441. The prohibition would use the existing definition of sexually harass in the Dictionary at section 12 of the FW Act (and other grammatical forms), which was inserted by the Respect at Work Act, and cross references the definition in the SD Act. 442. The legislative note would alert the reader that the prohibition of sexual harassment is a civil remedy provision. Meaning of worker 443. Subclause 527D(2) would clarify that worker for the purposes of Part 3-5A would have the same meaning as in the WHS Act. Broadly, a worker is an individual who performs House of Representatives 83 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. When a person is a worker in a business or undertaking 444. Subclause 527D(3) would clarifying the meaning of worker in a business or undertaking. It is equivalent to section 28AB of the SD Act. Other expressions 445. Subclause 527D(4) would incorporate relevant definitions from the WHS Act into clause 527D, subject to subclauses 527D(2) and (3). For example, 'person conducting a business or undertaking' would have the same meaning as in the WHS Act. Clause 527E Vicarious liability etc. 446. Clause 527E is modelled on the vicarious liability provision in section 106 of the SD Act. 447. Subclause 527E(1) would make a principal vicariously liable for any sexual harassment perpetrated by the principal's employee or agent in contravention of subclause 527D(1), if the contravention was done in connection with the employment of the employee or with the duties of the agent as an agent. This ensures an aggrieved person can obtain a remedy from the principal in addition to, or instead of, the perpetrator and is consistent with the approach to addressing sexual harassment under the SD Act, ensuring a coherent federal framework. 448. However, under subclause 527E(2), a principal would not be vicariously liable if the principal proves that it took all reasonable steps to prevent the employee or agent from contravening the prohibition on sexual harassment in subclause 527D(1). 449. Subclause 527E(1) would not limit section 550 of the FW Act, which deals with third party involvement in a contravention, or section 793 of the FW Act, which deals with liabilities of bodies corporate (subclause 527E(3)). 450. Principals who fail to take all reasonable steps to prevent workplace sexual harassment may also be subject to enforcement action in accordance with the new positive duty that would be inserted into the SD Act by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022--currently before Parliament. Division 3--Dealing with sexual harassment disputes Subdivision A--Applying for the FWC to deal with sexual harassment disputes Clause 527F Application for the FWC to deal with a sexual harassment dispute 451. Clause 527F is modelled on section 365 of the FW Act. It would provide for the making of applications for the FWC to deal with a sexual harassment dispute. Fair Work Legislation 84 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 452. Applications could be made by a person (the aggrieved person) who alleges they have been sexually harassed in connection with work by a person or persons (a respondent). Applications could also be made by an industrial association entitled to represent the industrial interests of an aggrieved person (subclause 527F(2)). • 'Industrial association' is defined in the Dictionary at section 12 of the FW Act. An industrial association would be entitled to represent the industrial interests of an aggrieved person if, for example, the aggrieved person was a member of the industrial association. 453. In making the application, an aggrieved person or industrial association could apply for the FWC to do either or both of the following to deal with the dispute (subclause 527F(1)): • make a stop sexual harassment order under clause 527J; • otherwise deal with the dispute. 454. This would be called a 'sexual harassment FWC application' (see subsection 734A(3)). 455. A stop sexual harassment order is intended to prevent any future harassment, while an application for the FWC to otherwise deal with the dispute is intended to remedy past harm caused by sexual harassment. 456. Legislative note 1 would alert the reader that a sexual harassment court application generally cannot be made unless the FWC has otherwise dealt with the dispute, by way of conciliation or mediation. 457. Subclause 527F(1) would provide flexibility for a person to make different kinds of applications at different times. For example, a person could make a single application seeking both a stop sexual harassment order and a remedy for past harm caused by sexual harassment. Alternatively, a person could initially seek a stop sexual harassment order and later amend their application, or make a new application, to seek a remedy for sexual harassment. Legislative note 2 would clarify this. 458. Subclause 527F(4) would provide details of the types of procedural rules that may be made in relation to applications under subclause 527F(1). This includes provision for: • joint applications made by two or more aggrieved persons or two or more industrial associations; • applications made by a single industrial association entitled to represent the industrial interests of two or more aggrieved persons; • the joinder of parties to the dispute, including the joinder of aggrieved persons, industrial associations, perpetrator or principals; • the withdrawal of parties to the dispute; and • the splitting of disputes. House of Representatives 85 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 459. The intention is to provide the FWC with flexibility to deal with multiple parties together where appropriate, for example, if there is a common perpetrator or principal or the sexual harassment occurred in the same business or undertaking. This may also minimise re-traumatisation of aggrieved persons by allowing the FWC to limit the number of times an aggrieved person is required to give evidence. 460. Subclause 527F(4) would not limit the FWC's general power to make procedural rules under section 609. 461. Subclause 527F(3) would prevent a defence member, as defined in the Defence Force Discipline Act 1982, from applying for a stop sexual harassment order in relation to sexual harassment that occurred while they were a defence member, except as provided by the regulations. This means stop sexual harassment orders would not be available to: • members of the Permanent Navy, the Regular Army or the Permanent Air Force; and • members of the Reserves who are sexually harassed while rendering continuous full-time service, or while on duty or in uniform, except to the extent provided by the FW Regulations. 462. This aligns with the existing framework for stop sexual harassment orders. Other military justice sanctions may apply where a defence member is sexually harassed. 463. Defence members would be able to make an application for the FWC to otherwise deal with the dispute under Part 3-5, including by conciliation or mediation and, if unsuccessful, by consent arbitration or court application. 464. Nothing in the Bill would create an employment relationship between members of the Defence Force and the Commonwealth. 465. A regulation-making power has also been included to enable the FW Regulations to alter the application of this limitation in relation to defence members. A regulation made under this new power could only be used to narrow--not broaden--the limitation on defence members making applications (that is, to specify circumstances in which an application for a stop sexual harassment order may be made by a defence member). Clause 527G Time for application 466. Clause 527G would provide the FWC with discretion to dismiss an application that is made under clause 527F more than 24 months after the contravention, or the last of the contraventions, is alleged to have occurred. This is consistent with time limits that apply to complaints relating to the SDA. 467. The legislative note would alert the reader to another power for the FWC to dismiss applications under section 587 where the application is not made in accordance with the FW Act, is frivolous or vexatious or has no reasonable prospects of success. Fair Work Legislation 86 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work Clause 527H Application fees 468. Clause 527H is modelled on section 367 of the FW Act. 469. Subclause 527H(1) would require an application made under clause 527F to be accompanied by the fee prescribed in the FW Regulations (if any). Paragraphs 527H(2)(a)-(c) would provide that the FW Regulations may prescribe the application fee, the method for indexing the fee and the circumstances in which all or part of the fee may be waived or refunded. 470. Because of section 15A of the AI Act, including as in force on 25 June 2009 (see section 40A of the FW Act) this regulation-making power cannot be read as authorising the imposition of a tax. Subdivision B--Stop sexual harassment orders Clause 527J Stop sexual harassment orders 471. Clause 527J would provide for stop sexual harassment orders to be made under Part 3- 5A. 472. Subclause 527J(1) is modelled on existing subsection 789FF(1) of the FW Act. It would empower the FWC to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an aggrieved person from being sexually harassed in contravention of Division 2 of Part 3-5A. Before an order can be made, an application must have been made to the FWC under clause 527F which includes an application for a stop sexual harassment order. The FWC must also be satisfied that the aggrieved person has been sexually harassed, and that there is a risk of continued sexual harassment. 473. Examples of the orders that the FWC could make include orders requiring: • the person or persons to stop the specified behaviour; • compliance with, or development of, a sexual harassment policy; and • the provision of information and additional support and training to workers in relation to sexual harassment. 474. Subclause 527J(2) is modelled on subsection 789FE(1) of the FW Act. It would require the FWC to start to deal with an application made under clause 527F, to the extent that it consists of an application for a stop sexual harassment order, within 14 days after the application is made. The legislative note would clarify that this may include the FWC taking steps to inform itself of the matters under section 590 of the FW Act, conducting a conference under section 592 of the FW Act or deciding to hold a hearing under section 593 of the FW Act. This is consistent with existing arrangements for stop sexual harassment orders. House of Representatives 87 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 475. Subclause 527J(3) is modelled on subsection 789FF(2) of the FW Act. It would provide that, when considering the terms of a stop sexual harassment order, the FWC must consider: • the following (to the extent that the FWC is aware): o any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body; o any procedures available to the aggrieved person to resolve grievances or disputes; o any final or interim outcomes arising from any procedures available to the aggrieved person for resolving grievances or disputes; and • any factors the FWC considers relevant. 476. Subclause 527J(4) is modelled on subsection 789FE(2) of the FW Act. It would permit the FWC to dismiss an application made under clause 527F, to the extent it consists of an application for a stop sexual harassment order, if it considers that the application might involve matters relating to Australia's defence, national security, or existing or future covert or international operations. This is necessary to ensure the stop sexual harassment order provisions do not interfere with Australia's defence, national security or covert operations and is consistent with the existing stop sexual harassment order jurisdiction. 477. Alternative avenues would be available if the FWC decided to dismiss an application under 527J(4). For example, a complaint could be made to the Inspector-General of Intelligence and Security if the matter related to an intelligence agency. 478. The legislative note would alert the reader that the FWC can also dismiss an application under section 587 where the application is not made in accordance with the FW Act, is frivolous or vexatious or has no reasonable prospects of success. Clause 527K Contravening a stop sexual harassment order 479. Clause 527K is modelled on section 789FG of the FW Act. It would provide that a person to whom a stop sexual harassment order applies must not contravene a term of that order. The legislative note would alert the reader that this clause is a civil remedy provision. Clause 527L Actions under work health and safety laws permitted 480. Clause 527L is modelled on section 789FH of the FW Act. It would provide that section 115 of the WHS Act and corresponding work health and safety laws do not apply in relation to an application for an order to stop sexual harassment made under clause 527F. Fair Work Legislation 88 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 481. Section 115 of the WHS Act prohibits the bringing of civil proceedings in relation to discriminatory or coercive conduct under the WHS Act if a person has already commenced a proceeding or made an application or complaint in relation to the same matter under a Commonwealth or a State law. This clause would ensure that access to these remedies is not blocked where a person has made an application to the FWC for a stop sexual harassment order. If a person suffers discrimination, adverse action or dismissal as a result of raising a sexual harassment matter, they would continue to be entitled to pursue remedies under the FW Act or the WHS Act. This is consistent with the existing stop sexual harassment order jurisdiction. Clause 527M This Subdivision is not to prejudice Australia's defence, national security etc. 482. Clause 527M is modelled on section 789FI of the FW Act. It would provide that nothing in the stop sexual harassment order provisions requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to Australia's defence, national security, or existing or future covert or international operations. This is consistent with the existing stop sexual harassment order jurisdiction. Clause 527N Declarations by the Chief of the Defence Force 483. Clause 527N is modelled on section 789FJ of the FW Act. It would provide for the Chief of the Defence Force to declare by legislative instrument, if the Minister approves, that some or all of the stop sexual harassment order provisions do not apply in relation to a specified activity. This is consistent with the existing stop sexual harassment order jurisdiction. Clause 527P Declarations by the Director General of Security 484. Clause 527P is modelled on section 789FK of the FW Act. It would provide for the Director-General of Security to declare by legislative instrument, if the Minister approves, that some or all of the stop sexual harassment order provisions do not apply in relation to persons carrying out work for the Director-General of Security. This is consistent with the existing stop sexual harassment order jurisdiction. Clause 527Q Declarations by the Director General of ASIS 485. Clause 527Q is modelled on section 789FL of the FW Act. It would provide for the Director-General of ASIS to declare by legislative instrument, if the Minister approves, that some or all of the stop sexual harassment order provisions do not apply in relation to persons carrying out work for the Director-General of ASIS. This is consistent with the existing stop sexual harassment order jurisdiction. House of Representatives 89 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work Subdivision C--Dealing with sexual harassment disputes in other ways Clause 527R Dealing with a sexual harassment dispute (other than by arbitration) 486. Clause 527R is modelled on section 368 of the FW Act. 487. Subclause 527R(1) would provide that if an application has been made under clause 527F, and the application does not consist solely of an application for a stop sexual harassment order, the FWC must deal with the dispute other than by arbitration. 488. The effect of this subclause would be that the FWC could deal with the dispute by mediation, conciliation or by making a recommendation or expressing an opinion. The legislative note would alert the reader to this. 489. Subclause 527R(2) would provide that the FWC must conduct any conference in private. This would be a limitation on the FWC's discretion in subsection 592(3) of the FW Act, which would otherwise allow the conference to be held in public. This is an appropriate protection for victim survivors and witnesses. The legislative note directs the reader to section 592 of the FW Act, which provides further rules relating to conferences. 490. Subclause 527R(3) would require the FWC, where it is satisfied all reasonable attempts to resolve the dispute other than by arbitration have been, or are likely to be unsuccessful, to issue a certificate to that effect. It would also require the FWC to advise the parties if the Commission considers that arbitration of the dispute or proceeding to a Federal Court to resolve the dispute would not have a reasonable prospect of success. 491. Once the FWC has issued a certificate under paragraph 527R(3)(a), an aggrieved person, or an industrial association entitled to represent the industrial interests of an aggrieved person can: • jointly agree with at least one other perpetrator or principal that the FWC will arbitrate the dispute between the agreeing parties (see clause 527S); • proceed to court (see clause 527T); or • elect not to proceed any further with the dispute. 492. Certain time limits apply (see subparagraph 527S(1)(e)(i) and subsection 527T(3)). Clause 527S Dealing with a sexual harassment dispute by arbitration 493. Clause 527S is modelled on section 369 of the FW Act. 494. Subclauses 527S(1) and (3) would enable the FWC to deal with a sexual harassment dispute if the following requirements were met: • the FWC has issued a certificate under paragraph 527R(3)(a) in relation to a dispute; Fair Work Legislation 90 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work • two or more of the parties (the notifying parties) have jointly notified the FWC that they agree to the FWC arbitrating the dispute; and • the notification is given within 60 days of the certificate being issued, unless the FWC grants an extension, and complies with any requirements prescribed by the procedural rules. 495. The notifying parties would include at least one party that is an aggrieved person or an industrial association entitled to represent the industrial interests of an aggrieved person, and a respondent (paragraphs 527S(1)(c) and (d)). This ensures the FWC can meaningfully arbitrate the dispute between the notifying parties. Parties to the dispute who are not notifying parties, i.e. who do not consent to arbitration, can proceed to court (see clause 527T). 496. The 60 day time limit is intended to provide enough time for discussions amongst multiple aggrieved persons, industrial associations and respondents about whether to proceed to arbitration. 497. Subclause 527S(2) would require the FWC to remove a party that is not a notifying party from the dispute. This would ensure that parties that do not consent to arbitration are not barred from taking the dispute to court by other amendments that would be made by the Bill (see clause 734A). This subclause would also require the FWC to notify a person when it has removed them as a party. This is relevant to certain time limits that apply to making a court application (see paragraph 527T(3)(b)). 498. The FWC may deal with the dispute between the notifying parties by arbitration, including by making one or more of the orders listed in subparagraphs 527S(3)(a)(i) to (iii) or by expressing one or more of the opinions listed in subparagraphs 527S(3)(b)(i) to (iii). These remedies are based on remedies available in relation to general protections dismissal disputes and under the SD Act and AHRC Act. 499. In dealing with a dispute, the FWC may also exercise its general powers, including its powers under section 590 to inform itself as it sees fit. 500. Subclause 527S(4) would provide that a person who is subject to an order of the FWC made under paragraph 527S(3)(a) must comply with the terms of the order. This would be a civil remedy provision under Part 4-1. 501. Other sections in Part 5-1 would also be relevant to FWC decisions when arbitrating sexual harassment disputes, including, for example: • a decision could be appealed to a Full Bench in accordance with sections 604 and 607; and • the FWC could make costs orders against parties pursuant to section 611. Clause 527T Limitation on taking a sexual harassment dispute to court 502. Clause 527T is modelled on section 370 of the FW Act. House of Representatives 91 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 503. Subclause 527T(1) would set out the two circumstances in which an aggrieved person, or an industrial association entitled to represent the industrial interests of an aggrieved person, could make a sexual harassment court application in relation to a dispute. These are: • where attempts by the FWC to conciliate or mediate the dispute have been unsuccessful and the FWC has issued a certificate to that effect; or • the aggrieved person or industrial association is seeking an injunction. 504. A 'sexual harassment court application' would be defined as an application made to a court under section 539 for a contravention of subclause 527D(1)--Prohibiting sexual harassment in connection with work (subclause 527T(2)). 505. This means an aggrieved person or industrial association must first attempt to resolve a dispute about sexual harassment in connection with work (at least to the extent that a remedy is sought for past harm) via FWC conciliation or mediation before proceeding to court, unless they are seeking an injunction. This aligns with the compliance framework for general protections dismissal disputes. This would also apply to aggrieved persons or industrial associations that have been joined to the dispute, even if they did not make the initial application. 506. Parties who have consented to the FWC arbitrating the dispute would also be prevented from making a making a sexual harassment court application against another party involved in that arbitration (see clause 734A and the legislative note in clause 527T). 507. An aggrieved person or industrial association would have to make a sexual harassment court application (other than an application seeking an injunction) within one of the following timeframes (unless the court grants an extension): • 60 days after the FWC has issued a certificate under paragraph 527R(3)(a) stating that all reasonable attempts to resolve the dispute other than by arbitration have been, or are likely to be unsuccessful; or • if the aggrieved person or industrial association making the sexual harassment court application is removed as party to the dispute because they have not agreed to arbitration--14 days after the FWC has notified the aggrieved person or industrial association of their removal. 508. The 60 day time limit aligns with the time limit for making court applications following conciliation by the AHRC in relation to sexual harassment in contravention of the SD Act. It also aligns with time limit for consent arbitration by the FWC and recognises that multiple complainants, industrial associations and respondents may be involved in the decision to proceed to consent arbitration or to court. 509. In the event the notifying parties took most or all of the 60 days to provide notification to the FWC of their intent to arbitrate, any other parties would have a 14-day grace period in which to make a sexual harassment court application. Fair Work Legislation 92 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work 510. A legislative note would refer the reader to Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, in which the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion to grant an extension of time for an application. 511. Nothing in this clause would prevent an aggrieved person or industrial association from enforcing a stop sexual harassment order in court if necessary at any time. Item 394: Subsection 539(2) (after table item 27) Item 396: Section 544 (note 1) Item 397: After paragraph 557(2)(l) 512. These items would apply the framework for enforcing civil remedy provisions in the FW Act to relevant provisions in Part 3-5A. 513. Item 394 would add the following contraventions to the table of civil remedy provisions set out at subsection 539(2) of the FW Act: • contraventions of the prohibition on sexual harassment in subclause 527D(1); • contraventions of stop sexual harassment orders under clause 527K; and • contraventions of orders made by the FWC in arbitration under subclause 527S(4). 514. The maximum civil penalty for a contravention would be 60 penalty units. 515. Item 396 would repeal and replace the legislative note to section 544 which deals with time limits for applications for contraventions of civil remedy provisions. The new note would clarify that the time limits in section 544 do not apply to sexual harassment court applications as other time limits apply. 516. Item 397 would apply the course of conduct rule to contraventions of the prohibition on sexual harassment in subclause 527D(1). 517. Other provisions related to the enforcement of civil penalties would also apply to sexual harassment court applications and applications for contraventions of stop sexual harassment orders and orders made by the FWC in arbitration, including: • a court could make the types of orders listed in section 545, including an order for compensation or any other order the court considers appropriate; • a court could order a perpetrator or principal to pay a pecuniary penalty under section 546; and • the costs framework for court applications under section 570 would apply. Item 398: After paragraph 576(1)(l) 518. This item would add prohibiting sexual harassment in connection with work to the list of subject matters the FWC can deal with under the FW Act. House of Representatives 93 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work Item 400: Subsection 587(2) 519. This item would prevent the FWC from dismissing an application in relation to alleged sexual harassment under clause 527F, other than an application that only seeks a stop sexual harassment order, on the ground that the application is frivolous or vexatious or has no reasonable prospects of success. This is consistent with the treatment of general protections dismissal disputes and unlawful termination applications. 520. An application that only seeks a stop sexual harassment order could be dismissed on these grounds, consistent with the existing treatment of applications for stop sexual harassment orders under the FW Act. Item 401: Subsection 592(3)(note) 521. This item would amend the legislative note to subsection 592(3) to alert the reader that the general power for the FWC to conduct a conference in public does not apply to conferences conducted in relation to sexual harassment matters. Item 402: Paragraph 601(5)(a) 522. This item would provide an exemption from the general requirement for the FWC to publish decisions for certificates issued under paragraph 527R(3)(a) following an unsuccessful attempt to resolve a sexual harassment dispute by conciliation or mediation. Item 403: Paragraph 609(2)(g) 523. This item would provide that procedural rules can be made about the manner in which conferences are conducted in relation to applications made under Part 3-5A-- Prohibiting sexual harassment connected with work. Item 404: After paragraph 675(2)(i) 524. This item would clarify that a person does not commit an offence if they contravene an order made under Part 3-5A. This would include a stop sexual harassment order and an order made by the FWC when arbitrating a dispute about sexual harassment. Item 407: After subparagraph 712AA(1)(a)(v) 525. This item would enable the FWO to issue a FWO notice if the FWO believes on reasonable grounds that a person has information or documents relevant to an investigation into a suspected contravention of the prohibition on sexual harassment. Item 408: Paragraph 734(1)(a) Item 409: Subsection 734(2) 526. Section 734 ensures that a person cannot bring a general protections application in relation to conduct if they have already sought a remedy under an anti-discrimination Fair Work Legislation 94 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work law in relation to that conduct. Anti-discrimination law is defined in subsection 351(3) to include all the Commonwealth, State and Territory anti-discrimination laws. 527. These items would clarify that a person also cannot bring a general protections application in relation to conduct if they have sought a remedy under the AHRC Act. This recognises that applications for contraventions of the Commonwealth anti- discrimination laws are generally made under the AHRC Act, rather than under the anti-discrimination law itself. Item 410: At the end of Division 3 of Part 6-1 528. This item would insert Subdivision D--Sexual harassment applications into Division 3 of Part 6-1 of the FW Act. Part 6-1 deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases. Subdivision D--Sexual harassment applications Clause 734A Sexual harassment court applications--interaction with sexual harassment FWC applications 529. Clause 734A would prevent a notifying party (i.e. a party that has notified the FWC that it agrees to the FWC arbitrating a sexual harassment dispute) from making a sexual harassment court application against another notifying party. This would ensure that a aggrieved person, or industrial association entitled to represent the industrial interests of an aggrieved person, could obtain a remedy against a perpetrator or principal either via FWC arbitration, or by court action, but not both. This would include aggrieved persons or industrial associations that have been joined to a dispute, even if they did not make the initial application. 530. An aggrieved person or industrial association that does not consent to arbitration could make a sexual harassment court application, provided the application is made within the timeframes set out in subclause 527T(3). The application could be made against any respondent involved in the matter, including a respondent that consented to arbitration. Clause 734B Sexual harassment FWC applications and sexual harassment court applications--interaction with anti-discrimination laws 531. Clause 734B would prevent a person from pursuing multiple remedies for sexual harassment under both the FW Act and an anti-discrimination law or under the AHRC Act. For example, a person could not seek a remedy for a contravention of the prohibition on sexual harassment in connection with work under both the FW Act and the SD Act. 532. Clause 734B would not prevent a person who has made an application for a stop sexual harassment order from pursuing a remedy in relation to the conduct under an anti- House of Representatives 95 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 8 - Prohibiting sexual harassment in connection with work discrimination law or under the AHRC Act. However, if the person later made an application to the FWC seeking a remedy in relation to the sexual harassment, they would be prevented from also seeking a remedy under another law. Division 2--Amendments relating to ILO Convention (No. 190) Amendments to the Fair Work Act 2009 Item 424: After paragraph 527C(c) 533. This item would insert references to the ILO Violence and Harassment Convention 2019 (No. 190) and the Violence and Harassment Recommendation 2019 (No. 206), into clause 527C. Item 425: Section 527C (note) 534. This item would make a consequential amendment. This would clarify that Part 3-5A-- Prohibiting sexual harassment in connection with work would be supported by the external affairs power in reliance on the Convention (No. 190) when it comes into force for Australia. Fair Work Legislation 96 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 9 - Anti-discrimination and special measures PART 9--ANTI-DISCRIMINATION AND SPECIAL MEASURES Overview 535. Part 9 would insert three further protected attributes--breastfeeding, gender identity and intersex status--into the anti-discrimination provisions in the FW Act to bring the FW Act into alignment with other Commonwealth anti-discrimination legislation, such as the SD Act. 536. This Part would also amend the FW Act to confirm that 'special measures to achieve equality' are matters pertaining to the employment relationship and therefore matters about which an enterprise agreement may be made. This Part would also clarify that 'special measures to achieve equality' are not discriminatory terms and therefore not unlawful terms in an enterprise agreement. Amendments to the Fair Work Act 2009 Item 426: Section 12 537. This item would insert new definitions of 'breastfeeding', 'gender identity' and 'intersex status' into the Dictionary at section 12 of the FW Act. 538. The definition of 'breastfeeding' would be non-exhaustive and is modelled on subsections 7AA(3)-(4) of the SD Act. It is intended to cover the processes surrounding the expression of milk, including preparation to express milk and storage of milk. 539. The definitions of 'gender identity' and 'intersex status' would be by reference to the definitions in the SD Act. 540. This item would also insert a signpost definition of 'special measure to achieve equality' into the Dictionary for the purposes of confirming that enterprise agreement terms to this effect are not discriminatory terms. The definition would refer the reader to new subsections 195(4) to (6) of the FW Act. Item 427: Subsection 153(1) Item 429: Subsection 195(1) Item 432: Subsection 351(1) Item 433: Paragraph 578(c) Item 436: Paragraph 772(1)(f) 541. The FW Act contains a range of protections against discriminatory conduct: • Subsections 153(1) and 195(1) of the FW Act deal with discriminatory terms in modern awards and enterprise agreements, respectively. House of Representatives 97 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 9 - Anti-discrimination and special measures • Subsection 351(1) of the FW Act prohibits an employer from taking discriminatory adverse action against a person who is a current or prospective national system employee because of the person's protected attribute. • Paragraph 578(c) requires the FWC, when performing its functions or exercising powers, to take into account the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination. • Paragraph 772(1)(f) prohibits an employer from terminating an employee's employment because they have a protected attribute. 542. These items would add the three further protected attributes to the existing list of protected attributes at each of these provisions. Item 428: At the end of Division 2 of Part 2-4 543. This item would insert new section 172A into Division 2 of Part 2-4 of the FW Act which sets out requirements for employers and employees making enterprise agreements. New section 172A would make clear that special measures to achieve equality are matters pertaining to the relationship between an employer that will be covered by the agreement and that employer's employees who will be covered by the agreement. They are therefore a permitted matter about which an enterprise agreement may be made. 544. New section 172A would resolve uncertainty that existed following the decision in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894. In that decision, the Full Bench of the FWC determined that gender quotas (a type of special measure to achieve equality) in relation to the number of applications to be considered for acceptance by an employer at the beginning of a selection process (as opposed to quotas that might apply in the context of the selection process itself) were not a matter pertaining to the employment relationship. The Full Bench explained that any alteration in the gender mix of applicants for employee firefighter roles, due to gender quotas applying in relation to applications that will be accepted in a recruitment process, could not reasonably be suggested to ever have any direct effect on the conditions of employee firefighters. The proposed quotas would therefore not constitute a change to the mode of recruitment, nor a matter pertaining to the employment relationship. 545. A Note to new section 172A would point out that a special measure to achieve equality may be a discriminatory term under section 195 (and therefore an unlawful term under section 194) to the extent that action that may be taken because of the term is unlawful under any applicable Commonwealth, State and Territory anti-discrimination laws. Item 430: At the end of subsection 195(2) 546. This item would expand subsection 195(2) of the FW Act by clarifying that a term of an enterprise agreement does not discriminate against an employee if the term is a Fair Work Legislation 98 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 9 - Anti-discrimination and special measures special measure to achieve equality, to the extent that action that may be taken because of the term is not unlawful under any operative anti-discrimination law in force where the action may occur. 547. New paragraph 195(2)(c) would operate subject to all Commonwealth, State and Territory anti-discrimination laws (as defined in subsection 351(3) of the FW Act) in force where the action may occur. This means that if a term of an enterprise agreement is a special measure to achieve equality, the term would not be discriminatory to the extent that any applicable State and Commonwealth anti-discrimination laws in force where action under the term may occur also permit that special measure. 548. Most anti-discrimination laws expressly exclude positive discrimination measures from the concept of unlawful discrimination (see for example, section 7D of the SD Act). Some anti-discrimination laws provide that additional requirements must be met before certain activities are deemed lawful. For example, see sections 126-126A of the Anti- Discrimination Act 1977 (NSW) which broadly provide that exemptions and certifications can be granted for particular classes of person or activities. Employers and employees seeking to include special measures to achieve equality as a term of an enterprise agreement will therefore need to have regard to any State, Territory or Commonwealth anti-discrimination laws that may apply to action that may be taken under the term to ensure that the term will not be discriminatory under the FW Act, as they would if they were taking the action in any other context. Item 431: At the end of section 195 549. This item would amend section 195 by inserting new subsections 195(4)-(6) which define 'special measure to achieve equality'. 550. New subsection 195(4) would make clear that a term of an enterprise agreement is a special measure to achieve equality for employees who have a particular attribute, or a particular kind of attribute mentioned in subsection 195(1), or a particular combination of these; and a reasonable person would consider the term necessary in order to achieve substantive equality. 551. New subsection 195(5) would make clear that a term of an enterprise agreement will have the purpose of achieving substantive equality for employees with a particular attribute, or particular kind of attribute if the term is solely for that purpose, or for that purpose in addition to other purposes, irrespective of whether that purpose is the dominant or substantial one. 552. New subsection 195(6) would make clear that a term of an enterprise agreement ceases to be a special measure to achieve equality once substantive equality for the employees who have a particular attribute, or particular kind of attribute, has been achieved. Item 434: Paragraph 771(d) Item 435: Paragraph 771(d) House of Representatives 99 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 9 - Anti-discrimination and special measures 553. These items would add the CEDAW, Article 26 of the ICCPR and Articles 2, 6 and 7 of the ICESCR to the existing list of international conventions at section 771 relating to the objects of Division 2 of Part 6-4. This would clarify that the amendments to add the three further protected attributes to paragraph 772(1)(f) are supported by the external affairs power in reliance on these conventions. Item 437: After Part 6-4C 554. This item would insert new Part 6-4D--Extension of anti-discrimination rules into the FW Act. This new Part would ensure that the amendments to add breastfeeding, gender identity and intersex status as protected attributes in the FW Act have constitutional support to apply in relation to employees and employers that are national system employees and employers by virtue of the States' referrals of industrial relations power (State referral employees and employers). 555. Sections 153, 195 and 351 of the FW Act are intended to operate with the same coverage in relation to breastfeeding, gender identity and intersex status as they currently do in relation to the existing protected attributes. However, the extension of these amendments to state referral employers and employees, and, in the case of section 351, to action taken in a referring state, would rely on the external affairs power as enlivened by the Conventions listed in new section 789A, in the case the State referrals would not provide full support. 556. The external affairs power would similarly be relied on in relation to new section 172A (which would be added by Part 9 of Schedule 1 of the Bill) to the extent it applies in relation to State referral employees and employers. 557. The amendments to paragraph 578(c) made by Item 433 would be supported by the incidental aspects of the relevant powers relied on to support the substantive anti- discrimination provisions and so is not covered by Part 6-4D. Fair Work Legislation 100 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts PART 10--FIXED TERM CONTRACTS Overview 558. The amendments in Part 10 would limit the use of fixed term contracts, subject to limited exceptions. While fixed term contracts continue to have a legitimate purpose, their ongoing use for some employees has become another form of insecure work. 559. Fixed term contracts help businesses to source workers to perform discrete tasks for a fixed period and can be used genuinely for many purposes. However, fixed term contracts exacerbate job insecurity for employees when they are used for the same role over an extended period, or where employees are subject to rolling contract renewals for jobs that would otherwise be ongoing. The amendments would limit fixed term contracts for the same role to two consecutive contracts or a maximum duration of two years, while preserving the legitimate use of fixed term contracts in certain circumstances. Amendments to the Fair Work Act 2009 Item 438: Section 12 560. This item would insert a new signpost definition of Fixed Term Contract Information Statement into current section 12, referring readers to the definition set out in new subsection 333J(1). Item 439: After section 141 561. This item would insert a new section 141A into the FW Act after current section 141. Section 141A--Terms permitting fixed term contracts 562. New subsection 141A(1) would confirm that a modern award can include terms that allow an employee to be engaged under a fixed term contract. Paragraph 139(1)(b) already allows modern awards to include terms about types of employment. New subsection 141A(1) would be inserted for the avoidance of any doubt, and to facilitate the operation of new subsections 141A(2) and 333F(1)(h). 563. New subsection 141A(2) would provide that a modern award may contain a term that would allow an employer to enter into a fixed term contract with an employee, even where that fixed term contract would otherwise be prohibited under the new section 333E. The employer would not be subject to a civil penalty for entering into that contract with the employee, irrespective of the operation of section 333E. 564. This provision would allow existing sector specific arrangements in modern awards that regulate the use of fixed term contracts to remain in place. These arrangements have been determined by the FWC to be appropriate, and necessary to achieve the modern awards objective in these sectors, and the Bill would not seek to displace these. House of Representatives 101 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts 565. In the event that the FWC considered it necessary to give effect to the modern awards objective (section 134), it would be able to vary these arrangements in an existing award, or insert relevant terms into a modern award that does not currently contain such terms. Item 440: Before section 322 566. This item would insert a summary of new Division 5 into to the guide to Part 2-9. Item 441: In the appropriate position in Part 2-9 567. This item would insert new Division 5 into Part 2-9 of the FW Act. Division 5--Fixed term contracts Subdivision A--Limitations on fixed term contracts Section 333E--Limitations on fixed term contracts 568. New subsection 333E(1) would introduce a civil penalty for entering into a fixed term employment contract that meets one of the conditions set out new subsections 333E(2), 333E(3), or 333E(4). The types of contracts to which new subsection 333E(1) would apply are those containing a term that ends the employment after a certain period. This would include contracts that may be ended by the employer or employee during the period, which are also known as maximum term contracts or outer limit contracts. New subsection 333E(1) would not apply to fixed term contracts entered into by casual employees. This is intended to avoid unintended consequences, for example in circumstances where casuals enter into contracts on a shift-by-shift basis. 569. New subsection 333E(2) would prohibit an employer from entering into a fixed term contract with an employee for a period longer than two years. 570. New subsection 333E(3) would prohibit an employer from entering into a fixed term contract with an employee that either could be extended or renewed for a period that, in total across all contracts, exceeded two years. New subsection 333E(3) would also prohibit an employer from entering into a fixed term contract with an employee that could be extended or renewed more than once. These new subsections are intended to prevent the prohibition from being circumvented through contractual arrangements. 571. New subsections 333E(4) and (5) would provide that a civil penalty would apply to a person who entered into a fixed term employment contract that would: • continue the same, or substantially similar, employment relationship and work duties as a previous fixed term contract, and • either contain a further right of renewal or extension, or, in combination with the previous fixed term contract, exceed two years in length. Fair Work Legislation 102 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts 572. The requirement of 'substantial continuity' of the employment relationship between contracts in new paragraph 333E(5)(c) is intended to ensure that periods between contracts that are not intended to end the relationship between the employer and the employee do not break the connection between the contracts for the purposes of subsections 333E(4) and (5). For example, contracts that finish at the end of one semester and start at the beginning of the next semester, and contracts that start after an employee has taken a short break for personal reasons, may still contravene subsection 333E(1). Section 333F--Exceptions to limitations 573. New section 333F would provide limited exceptions to the prohibition in new section 333E. An employer may enter into a contract of employment with an employee that is for longer than two years or that contains more than one option for renewal, where: • the employee has specialised skills that the employer does not have, but needs, to complete a specific task; • the employee is engaged as part of a training arrangement (for example, an apprentice or a trainee); • the employer needs additional workers to do essential work during a peak period, such as for fruit picking or other seasonal work; • the employer needs additional staff members during an emergency, or needs to replace a permanent employee who is absent for personal or other reasons, for example parental leave, sabbatical, or long service leave, or absence relating to workers' compensation; • the employee earns over the high income threshold for the first year of the contract; • the employer is reliant on government funding, or other funding of a kind specified in the FW Regulations, to directly finance the employee's position either in whole or in part-the employer must receive the funding for more than two years, and there must not be any reasonable possibility that the funding will be renewed; • the employee is appointed under governance rules of a corporation or other association, where those rules specify the length of time that the appointment can be in place; • the employer is permitted to enter into the fixed term contract by a term specified in a modern award that covers the employee; and • the contract is a type of contract, prescribed in the FW Regulations, for which an exception applies. House of Representatives 103 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts 574. New subsection 333F(2) would provide that, where an employee works part-time hours or starts a new contract during a year, the contract would still meet the high income threshold exemption if it would have met the high income threshold had the employee worked full time hours or worked for the entirety of the year. To determine this, the employer would need to apply the formula set out in the FW Regulations. 575. To determine whether the employee is working part-time hours, the employer can take into account the ordinary working hours of other full time and part-time employees in the same or a comparable position in their business. The employer may also consider the meaning of 'ordinary hours of work' set out in section 20 of the FW Act. 576. New subsection 333F(4) would provide that, if an employer is relying on an exception in new subsection 333F(1), that employer would bear an evidential burden in relation to this exception. As set out at section 13.3 of the Criminal Code Act 1995, the evidential burden 'means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. Although this definition does not directly apply to the FW Act, this is the intended meaning. If the employer satisfies the evidential burden, then the complainant would bear the legal burden of proving the exception does not apply. This is consistent with the general approach taken to defences. It is appropriate that the employer bear the evidential burden in relation to these exceptions, as they are best placed to explain why fixed term employment was necessary in their particular business circumstances. 577. It would be best practice for the employer to include the exception that they rely on within the terms of the fixed term contract, and the basis on which they consider the exemption applies, to assist them in meeting their burden. Section 333G--Effect of entering prohibited fixed term contract 578. New section 333G would ensure that an employee who enters into a fixed term contract that is not permitted by the new section 333E can still rely on that contract to inform the terms and conditions of their employment. 579. New paragraph 333G(1)(a) would provide that, where an employer enters into a fixed term contract which contravenes new section 333E, the term that ends the contract after a certain period would be considered to be invalid. This means that the contract would otherwise apply as to its terms, except that the contract does not end at the nominal expiry date. 580. New paragraph 333G(1)(b) would confirm that the contract would not otherwise be invalid merely because it contravenes new section 333E. This would allow the employee to enforce their rights under the employment contract in the event that a dispute arose. 581. New subsection 333G(2) would confirm that subsection 333G(1) would apply for the purposes of the FW Act and any other law of the Commonwealth, or of a State or Territory. Subsection 333G(1) would also apply for the purposes of a modern award or Fair Work Legislation 104 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts enterprise agreement, a workplace determination, a FWC order, a copied State instrument, and for the purposes of the contract between the parties. Among other things: • The employee would not be considered to have been employed for a specified period of time, a specified task, or a specified season for the purposes of the current paragraph 386(2)(a) relating to unfair dismissal. • If the contract contains clauses that require the employer to give notice, or payment in lieu of notice on termination of the contract, and to give redundancy pay to the employee, the employee may still be able to rely on these clauses, as long as they are more beneficial than the minimum standards in the NES. • Otherwise, the employee may be entitled to notice on termination or payment in lieu of notice, and redundancy pay, if they meet the requirements in Division 11 of Part 2-2. The employee would not be considered to have been employed for a specified period of time, a specified task, or a specified season for the purposes of paragraph 123(1)(a) of the FW Act. 582. For clarity, the notice period and redundancy pay would be calculated from the start of the employment relationship, and not, for example, when the employer enters into the contract that breaches new section 333E. Section 333H--Anti-avoidance 583. New section 333H would prohibit an employer from making changes to the timing or terms of a fixed term contract in order to avoid the operation of the new section 333E. If the employer has multiple reasons for making the changes, as long as one of the reasons is to avoid the operation of the new section 333E, this section would apply. It would be a matter for the person making the complaint against the employer to prove that the employer was making the changes to avoid the operation of the new section 333E. 584. This section would apply where the employer: • terminates the employee's employment for a period, and then engages the employee again for the same duties, so as to artificially break the continuity of their employment • delays re-engaging the employee, so as to artificially break the continuity of their employment • artificially changes the work duties of the employee between two contracts, so that the employee could not be said to be performing the same or similar work for the employer, and • otherwise makes a change to the employment relationship. House of Representatives 105 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts Subdivision B--Other matters Section 333J--Fixed Term Contract Information Statement 585. New section 333J would require the FWO to prepare and publish a Fixed Term Contract Information Statement in the Government Gazette. The statement would contain information about: • the prohibition in new section 333E, including the exceptions in new section 333F and the effect of entering into the contract in the new section 333G; and • dispute resolution under new section 333L. Section 333K--Giving new employees the Fixed Term Contract Information Statement 586. New section 333K would require an employer who is entering into a fixed term contract with an employee (whether or not one of the exceptions in new section 333F applies) to give that employee a copy of the statement at new section 333J. A civil penalty would apply to the employer if they failed to provide the Fixed Term Contract Information Statement. Section 333L--Disputes about the operation of this Division 587. New section 333L would provide a process for an employer and employee (collectively, the parties) to resolve disputes relating to the operation of Division 5 of Part 2-9. 588. New subsection 333L(2) would provide that the parties should first try to resolve the issues informally at the workplace level, by having discussions between themselves. The parties may consider any workplace policies regarding dispute resolution. 589. If the parties cannot agree to resolve the matter between them, new subsections 333L(3) and (4) would allow either of the parties to apply to the FWC to resolve the dispute. The FWC may use any means it sees fit to resolve the dispute, including by mediation, conciliation, making a recommendation, or expressing an opinion. If the parties both agree, the FWC may conduct an arbitration and make a decision that is binding on the parties. 590. New subsection 333L(5) would make it clear that the parties can appoint another person or industrial organisation to support or represent them for the purposes of resolving the dispute, referring the dispute to the FWC, or the FWC dealing with the dispute. This is subject to section 596, which requires a person who is seeking to be represented by a lawyer or a paid agent to obtain permission from the FWC. Fair Work Legislation 106 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 10 - Fixed term contracts Item 442: Subsection 539(2) (before the table items headed "Part 3-1--General protections") 591. This item would specify, in subsection 539(2), the penalties for contraventions of new sections 333E and 333K. For both provisions, the prescribed penalty would be 60 penalty units for an ordinary contravention, and 600 penalty units for a serious contravention. Item 443: Subparagraph 548(1B)(a)(iv) 592. This item would remove the word 'and' from subparagraph 548(1B)(a)(iv), so as to facilitate the new subparagraphs 548(1B)(a)(v) and 548(1B)(a)(vi). Item 444: At the end of subparagraph 548(1B)(a) 593. This item would allow the parties to a dispute relating to the new Division 5 to apply for an order from a Magistrates' Court or the Federal Circuit and Family Court of Australia using the small claims procedure in section 548 of the FW Act. 594. New subparagraph 548(1B)(a)(v) would allow a dispute about whether the employer has entered into a contract that is not permitted by new section 333E to be dealt with as a small claims proceeding. This would include a dispute between an employer and employee as to whether the employer was entitled to rely on an exception in new section 333F in entering into the contract. 595. Further, new subparagraph 548(1B)(a)(v) would allow a dispute about whether a termination clause within a contract is effective as a result of the operation of new section 333G to be dealt with as a small claims proceeding. This would mean, for example, that the parties could seek a binding order about their obligations under the contract going forward, or about the employee's entitlement to redundancy pay or notice on termination. Item 445: After paragraph 576(1)(g) 596. This item would insert new paragraph 576(1)(ga) after paragraph 576(1)(g). 597. New paragraph 576(1)(ga) would include new Part 2-9 within the subject matters in respect of which the FWC could perform its functions. House of Representatives 107 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work PART 11--FLEXIBLE WORK Overview 598. Division 4 of the NES deals with an employee's right to request changes to their working arrangements (flexible work arrangements). This Part would amend Division 4 of the NES to: • expand the circumstances in which an employee may request a flexible working arrangement where they, or a member of their immediate family or household, experiences family or domestic violence, to align the coverage of family violence with the entitlement to family and domestic violence leave • support employee access to flexible working arrangements by strengthening employer obligations when considering an employee's request, based on the model award term developed by the FWC, and • introduce dispute resolution provisions enabling the FWC to make orders where an employer refused an employee's request or did not respond to the request within 21 days, including consideration of whether the employer has reasonable business grounds to refuse a request. Division 1--Family and domestic violence (main amendments) Amendments to the Fair Work Act 2009 Item 446: Paragraph 65(1A)(e) Item 447: Paragraph 65(1A)(f) 599. The existing paragraphs 65(1A)(e) and (f) provide for circumstances where an employee may request a change to his or her working arrangements because the employee is: • experiencing violence from a member of the employee's family, or • provides care or support to a member of his or her immediate family or a member of his or her household who requires care or support because the member is experiencing violence from the member's family 600. These items would amend existing paragraphs 65(1A)(e) and (f), to expand the circumstances in which an employee may request a flexible working arrangement to where they, or a member of their immediate family or household, experiences 'family and domestic violence'. 601. 'Family and domestic violence' is defined in existing subsection 106B(2) of the FW Act and may include behaviours which are abusive or threatening, as well as violent. The effect of this amendment is to align the coverage of family violence with the entitlement to family and domestic violence leave. In particular, if the amendments Fair Work Legislation 108 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work proposed in the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 are made, the amendment would include violence perpetrated by a member of a person's household, a current or former intimate partner, and a person who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. Division 2--Family and domestic violence (consequential amendments) Amendments to the Fair Work Act 2009 602. This Division would make a number of consequential amendments to the language used throughout the FW Act, to ensure the definition of 'family and domestic violence' in the existing subsection 106B(2) would apply to members of an employee's immediate family or household. Item 448: Section 12 (definition of de facto partner) 603. This item would replace the existing definition of 'de facto partner' in section 12 of the FW Act. The new definition would be substantively the same as the existing definition, but would refer to 'a person' rather than 'an employee'. This technical amendment is necessary to allow the definition to be used in the amended flexible working arrangement provisions. Item 449: Section 12 (definition of immediate family) Item 450: Section 12 (paragraphs (a) and (b) of the definition of immediate family) 604. These items would amend the current definition of 'immediate family' in section 12 of the FW Act to refer to 'a person', rather than 'a national system employee'. This technical amendment is necessary to allow the definition to be used in the amended flexible working arrangement provisions. Item 451: Subsection 106B(2) Item 452: Subsection 106B(2) Item 453: Subsection 106B(2) Item 454: Paragraphs 106B(2)(a) and (b) 605. These items would amend the current definition of 'family and domestic violence' in subsection 106B(2) of the FW Act, to refer to 'a person', rather than 'an employee'. This technical amendment is necessary to allow the definition to be used in the amended flexible working arrangement provisions. Item 455: Subsection 106B(3) Item 456: Paragraph 106B(3)(a) Item 457: Paragraph 106B(3)(b) House of Representatives 109 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work 606. These items would amend the current definition of a 'close relative' in subsection 106B(3), to refer to 'a person', rather than 'an employee'. This technical amendment is necessary to allow the definition to be used in the amended flexible working arrangement provisions. Division 3--Grounds for refusing requests Amendments to the Fair Work Act 2009 607. This Division would insert new section 65A to provide a more detailed procedure for how employers must respond to requests for flexible working arrangements. The new section 65A is based on the model award term developed by the FWC, which is already available to many national system employees. New section 65A would formalise a substantively similar process in the FW Act. The new section 65A would strengthen existing procedures in the FW Act by requiring employers to discuss requests with the employee and genuinely try and reach agreement prior to refusing an employee's request. The employer would also be required to provide detailed reasons for any refusal and inform the employee of any alternative working arrangements the employer would be willing to make instead to accommodate the employee's circumstances. Item 458: Subsections 65(4) to (6) Item 459: After section 65 608. These items would repeal the existing provisions at subsections 65(4) to (6) of the FW Act, which deal with employer responses to requests for flexible work arrangements, and replace them with new section 65A. 609. As in the existing provisions, the new section 65A would require an employer to respond to a request for a flexible working arrangement within 21 days of receipt, stating whether the employer grants or refuses the request (new subsections 65A(1) and (2)). New paragraph 65A(2)(b) would provide that the employer may also grant an alternative flexible working arrangement to what was initially requested by the employee, provided the employer and employee discuss the request and agree to the change to the employee's working arrangements. 610. Under new subsection 65A(3), an employer would only be able to refuse a request for flexible working arrangements if: • the employer has: o discussed the request with the employee (new subparagraph 65A(3)(a)(i)); and o genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements that would accommodate the employee's circumstances (new subparagraph 65A(3)(a)(ii)); and Fair Work Legislation 110 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work • the employer and employee have been unable to reach agreement (new paragraph 65A(3)(b)); • the employer has had regard to the consequences of the refusal for the employee (new paragraph 65A(3)(c)); and • the refusal is based on reasonable business grounds (new paragraphs 65A(3)(d)). 611. New subsection 65A(4) would clarify the employer would not be required to agree to a change to an employee's working arrangements under new subparagraph 65(3)(a)(ii) if the employer has reasonable business grounds for refusing to do so. 612. The new subsection 65A(7), would clarify that the meaning of 'genuinely trying to reach an agreement' in subparagraph 65A(3)(a)(ii) would not affect and would not be affected by the meaning of any similar expressions used elsewhere in the FW Act--for example, in relation to enterprise bargaining; 613. New paragraph 65A(5) would be substantively the same as the existing subsection 65(5A) and would require any refusal of a request by an employer to be based on reasonable business grounds, including that: • the new working arrangements requested would be too costly for the employer (new paragraph 65A(5)(a)); • there is no capacity to change the working arrangements of other employees to accommodate the request (new paragraph 65A(5)(b)); • it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the request (new paragraph 65A(5)(c)); • the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity (new paragraph 65A(5)(d)); and • the new working arrangements requested would be likely to have a significant negative impact on customer service (new paragraph 65A(5)(e)). 614. Where an employer refuses a request, new subsection 65A(6) would require the employer to give the employee a written response: • providing details of the reason for the refusal, including how the particular business grounds being relied on apply to the request (new paragraphs 65A(6)(a) and 65A(6)(b)); • setting out other changes to the employee's working arrangements that the employer is willing to make and which would accommodate the employee's circumstances, or stating that there are no such changes the employer is willing to make (new paragraph 65A(6)(c)); and House of Representatives 111 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work • providing information on the dispute resolution provisions at new sections 65B and 65C (new paragraph 65A(6)(d)). Division 4--Civil remedies and dispute resolution Amendments to the Fair Work Act 2009 Overview 615. This Division would: • introduce amendments to ensure contraventions of new sections 65 and 65A are captured by the civil remedy provision in existing section 44; • introduce new dispute resolution provisions, including empowering the FWC to arbitrate certain disputes and make certain orders in relation to flexible working arrangements; • prohibit a person from contravening an order made by the FWC in relation to a dispute about flexible working arrangements; and • amend various parts of the FW Act to clarify that modern awards and enterprise agreements may include terms for resolving disputes about matters relating to flexible working arrangements. Item 460: Subsection 44(2) 616. This item would amend existing subsection 44(2) to remove the current reference to subsection 65(5). This amendment would make it clear that contraventions of new sections 65 and 65A are captured by the civil remedy provision in existing section 44. Under existing Division 2 of Part 4-1 of the FW Act, employees would be able to make an application for a court to make orders in relation to a contravention of sections 65 and 65A, including orders imposing a penalty on an employer. This would be consistent with the court's powers in relation to contraventions of other provisions in the NES. Item 461: Subsection 44(2) (note 1) Item 462: Subsection 44(2) (note 2) 617. These items make consequential amendments to note 1 and note 2 to the existing subsection 44(2), to remove references to existing subsection 65(5) and related material. Item 463: Before section 66 618. This item would insert new sections 65B and 65C, which would provide for the resolution of disputes about flexible working arrangements arising under Division 4 of the NES. Fair Work Legislation 112 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work Section 65B - Disputes about the operation of this Division 619. The new section 65B would empower the FWC to resolve disputes regarding the operation of Division 4 of the NES, where: • the dispute relates to a request for a flexible working arrangement (new paragraph 65B(1)(a)); and • either: o the employer has refused the request (new subparagraph 65B(1)(b)(i)); or o 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under new section 65A (new subparagraph 65B(1)(b)(ii)). 620. Similar to other dispute resolution provisions in the FW Act, a party may refer a dispute to the FWC under new section 65B where: • the parties to the disputes have attempted to resolve the dispute by discussions at the workplace level (new subsection 65B(2)); and • discussions at the workplace level have not resolved the dispute (new subsection 65B(3)). 621. The FWC would be able to deal with the dispute as it considers appropriate, including by arbitration in accordance with new section 65C (new subsection 65B(4)). 622. Under new subsection 65B(5), the employer or employee may be represented in the FWC by another person or an industrial association. However, existing section 596 would continue to require the FWC to give permission before a person may be represented by a lawyer or paid agent (new note to subsection 65B(5)). Section 65C - Arbitration 623. New section 65C would set out the orders the FWC can make where it arbitrates a dispute under new paragraph 65B(4)(b). Under new subsection 65C(1), the FWC would be empowered to make any of the following orders: • if the employer has not given the employee a written response to the request under new section 65A--an order that the employer be taken to have refused the request (new paragraph 65C(1)(a)); • if the employer has refused the request, an order about whether it would be appropriate for the grounds on which the employer refused the requested to be treated as being reasonable business grounds or not (new paragraph 65C(1)(b)); • an order that the employer give the employee a written response under new section 65A (new paragraph 65C(1)(c); House of Representatives 113 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work • an order that the employer give to the employee details, or further details, of any of the matters mentioned in new subsection 65A(6) (new paragraph 65C(1)(d); • any other order that the FWC considers appropriate to ensure compliance by the employer with new section 65A (new paragraph 65C(1)(e); and • if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without such an order being made (see new subsection 65C(3)): o an order that the employer grant the employee's original request for flexible working arrangements (new subparagraph 65C(1)(f)(i)), or o an order that the employer make other specified changes to the employees working arrangement to accommodate the employee's circumstances (new subparagraph 65C(1)(f)(ii)). 624. The FWC is not intended to have the power to contravene an industrial instrument or the FW Act in making an order about flexible working arrangements under new section 65C. 625. In considering whether to make an order, the FWC would be required to take into account fairness between the parties (new subsection 65C(2)). 626. The effect of the FWC making an order under new paragraph 65C(1)(a) would be that the employer is taken to have refused the request (new subsection 65C(4)). 627. The effect of the FWC making an order under the new paragraph 65C(1)(b) would be to deem that the employer's refusal to be, or not be, made on reasonable business grounds (new subsection 65C(5)). 628. Under new subsection 65C(6), a person would be prohibited from contravening a term of a FWC order made under new subsection 65C(1). New subsection 65C(6) would be a civil remedy provision. Item 464: Section 146 (note) Item 465: Subsection 186(6) (notes 1 and 2) 629. These items would amend the notes to existing sections 146 and 186(6) to provide that the FWC may resolve disputes about flexible working arrangements using dispute resolution procedures in a modern award or enterprise agreement. These amendments are consequential to the proposed changes at item 467 below. Item 466: Subsection 539(2) (after table item 5) 630. This item would insert a new civil penalty in existing subsection 539(2). The penalty would apply where a person contravenes a term of a FWC order made under new subsection 65C(1) (in breach of new subsection 65C(6)). The maximum penalty for an individual would be 60 penalty units. Fair Work Legislation 114 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 11 - Flexible work Item 467: Subsection 545(1) (note 4) 631. This item would amend note 4 to existing subsection 545(1) of the FW Act to provide that a court can make orders under that subsection in relation to contraventions of new section 65A. This amendment is consequential to the proposed changes at Item 460 to subsection 44(2). Item 468: Before paragraph 675(2)(a) 632. This item would amend existing subsection 675(2) to make it clear that a person does not commit an offence under subsection 675(1) where they contravene a term of an order made by the FWC under new subsection 65C(1). Item 469: Subsections 739(2) and 740(2) 633. This item would amend existing subsections 739(2) and 740(2) to remove the existing reference to section 65(5). The effect of this would be to remove the existing restrictions on the FWC (or another person authorised to deal with a dispute) considering whether there are reasonable business grounds for an employer to refuse a request for flexible working arrangements. House of Representatives 115 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 12 - Termination of enterprise agreements after nominal expiry date PART 12--TERMINATION OF ENTERPRISE AGREEMENTS AFTER NOMINAL EXPIRY DATE Overview 634. This Part would replace the rules for terminating an enterprise agreement after its nominal expiry date has passed (nominally expired), to ensure the process is fit for purpose and fair. It would stop the practice of employers applying unilaterally to the FWC for termination of a nominally expired enterprise agreement, where termination would result in reducing employees' entitlements other than in prescribed circumstances. That includes situations where the threat of termination may disrupt bargaining for a new enterprise agreement. Amendments to the Fair Work Act 2009 Item 470: Section 12 635. This item would insert new signpost definitions of 'guarantee of termination entitlements' and 'protected employee' into the dictionary for the FW Act in existing section 12. Both definitions would refer to new subsection 226A. Item 471: Section 226 636. This item would repeal and replace the rules for terminating an enterprise agreement that has nominally expired and add a new 'guarantee of termination entitlements' (new sections 226 and 226A). Section 226--Terminating an enterprise agreement after its nominal expiry date 637. New section 226 would set out when the FWC must (upon application under existing section 225) terminate an enterprise agreement that has nominally expired. 638. By new subsection 226(1) the FWC must (upon application) terminate the agreement if satisfied: • its continued operation would be unfair for the employees covered by the agreement; • it does not, and is not likely to, cover any employees; or • all of the circumstances in new paragraph 226(1)(c) apply. 639. Provision is made in new paragraph 226(1)(c) for the situation where there is a potential of employees' employment being terminated on grounds of redundancy or because of the employer's insolvency or bankruptcy (as defined in new paragraph 226(2)). In those circumstances, the FWC must (upon application) terminate the enterprise agreement if satisfied: Fair Work Legislation 116 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 12 -Termination of enterprise agreements after nominal expiry date • its continued operation would pose a significant threat to the viability of a business carried on by the employer or employers covered by the agreement; and • the termination of the enterprise agreement would be likely to reduce the potential for terminations of employees' employment due to redundancy or the employer's insolvency or bankruptcy (as defined); and • (if relevant)--each employer covered by the agreement has given the FWC a 'guarantee of termination entitlements' (as defined). This last consideration is only necessary if the agreement proposed to be terminated contained terms providing termination entitlements for employees. 640. New subsection 226(2) provides this subsection covers terminations on grounds of redundancy or because of the employer's insolvency or bankruptcy (as defined). 641. New subsection 226(3) would require the FWC to consider the views of the employees (unless there are no employees covered by the agreement), each employer and each employee organisation (if any) covered by the agreement, in deciding whether to terminate the agreement. 642. A new Note would cross-reference from new subsection 226(3) to new subsection 615A(3), which would require an application for termination to be transferred to a Full Bench of the FWC for consideration, if opposed by any specified party. 643. New subsection 226(4) would require the FWC to have regard to the circumstances set out in paragraphs (a) - (c) when deciding whether to terminate the agreement as set out below), while new subsection 226(5) would make clear that the FWC may also have regard to any other relevant matter. 644. New subsection 226(4) would specifically address the situation where termination of the existing agreement is proposed in the context of bargaining (including prospective bargaining) for a replacement enterprise agreement, by requiring the FWC to have regard to: • whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; • whether bargaining for the proposed new enterprise agreement is occurring; and • whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement. 645. This would require the FWC to consider the effect that terminating an enterprise agreement may have on the affected employees' bargaining position during negotiations for a new enterprise agreement. It is intended to prevent an enterprise House of Representatives 117 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 12 - Termination of enterprise agreements after nominal expiry date agreement being terminated as a bargaining tactic, which would be unfair for the employees covered by the agreement (particularly in terms of their bargaining position). Section 226A--Guarantee of termination entitlements 646. New subsection 226A(1) would establish a 'guarantee of termination entitlements' for 'protected employees' whose enterprise agreement is terminated because its continued operation would pose a significant threat to the viability of the business etc. (see new subsection 226(2) and new subparagraph 226(1)(c)(iii)). This guarantee is given by way of an undertaking that the employer will comply with its obligations in new subsection 226A(3). 647. The undertaking would be made by the employer in writing and would need to meet any requirements for signing that are prescribed by the regulations. It would require the employer to comply with new subsection 226A(3) if: • the agreement is terminated under the new section 226; and • the employer terminates the employment of a 'protected employee' on the ground of: • redundancy (as defined in the section); or • because of the employer's insolvency or bankruptcy. 648. New subsection 226A(2) would define a protected employee as an employee who would, but for the termination of the agreement, be covered by the agreement. 649. If protected employees' employment is terminated on grounds of redundancy etc., new subsection 226A(3) would require the employer to comply with any terms of the terminated enterprise agreement that, had it continued in operation, would have provided the employees with entitlements that: • relate to their termination on the relevant grounds; and • are more beneficial than the entitlements under a modern award that would otherwise apply at the time (except if the employee was an award/agreement free employee immediately before termination). 650. The guarantee of termination entitlements would, in effect, preserve the protected employees' redundancy entitlements etc. as if the terminated enterprise agreement were still in operation, providing they were more beneficial than those that would otherwise apply. 651. New subsection 226A(4) would specify when a guarantee of termination entitlements is in force. A guarantee would come into force on the day on which the termination of the agreement comes into operation. It ceases to be in force at the earliest of the following times: Fair Work Legislation 118 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 12 -Termination of enterprise agreements after nominal expiry date • at the end time specified in the guarantee (if any), as approved by the FWC; • immediately before another enterprise agreement (with the same or substantially the same coverage as the terminated one) comes into force; or • 4 years from the day the guarantee is given to the FWC. 652. By new subsection 226A(5) the FWC would be empowered to approve a period (of no more than 4 years' duration having regard to the operation of new subparagraph 226A(4)(b)(i)) for the purposes of new subparagraph 4(b)(i) if it considers the period to be appropriate. 653. New subsection 226A(6) is a civil remedy provision that would make the guarantee of termination entitlements enforceable under the FW Act. A legislative note makes clear that this subsection is a civil remedy provision and cross-references Part 4-1 of the FW Act, which deals with civil remedies. 654. To avoid doubt new subsection 226A(7) provides that a guarantee of termination entitlements would be a governing instrument for employment for the purposes of the FEG Act. Item 472: Subsection 539(2) (after table item 5B) 655. This item would add a contravention of new subsection 226A(6) to the table of civil remedy provisions set out at existing subsection 539(2) of the FW Act. The new table item would provide that an employee, employee organisation to which the enterprise agreement applied immediately before the termination of the agreement, or an inspector can bring an action for an alleged contravention in a federal court or eligible State or Territory court. The maximum penalty for a contravention would be 60 penalty units, or 600 penalty units for a serious contravention (and 5 times higher for bodies corporate). Item 473: Before subsection 615A(1) Item 474: Subsection 615A(2) Item 475: At the end of section 615A 656. These items would add to the circumstances (listed in existing section 615A) when the President directs a Full Bench of the FWC to perform a function or exercise a power and make consequential amendments. 657. New subsection 615A(3) would require the President to direct a Full Bench to deal with an application under new section 226 for the termination of a nominally expired enterprise agreement if: • the President had given a direction to a FWC member to start dealing with the application; and House of Representatives 119 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 12 - Termination of enterprise agreements after nominal expiry date • the FWC member is satisfied that any of the following persons covered by the agreement oppose the termination: an employee, an employer and/or employee organisation. 658. New subsection 615A(4) would disapply this requirement if the FWC member is satisfied the enterprise agreement does not, and is not likely, to cover any employees. 659. New subsection 615A(5) would provide that the requirement for a Full Bench to deal with an application would not prevent a power that may be delegated under subsection 625(1) from being exercised by a single FWC member or other person to whom the power has been delegated. A legislative note would give examples of the kind powers that may be delegated under existing subsection 625(1). Amendments to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Item 476: At the end of item 16 of Schedule 3 660. This item would amend item 16 of Schedule 3 to the FW Transitional Act to clarify that subsection 615A(3) of the Act does not apply to collective agreement-based transitional instruments. Item 477: Item 23 of Schedule 3A Item 478: At the end of item 23 of Schedule 3A 661. These items amend item 23 of Schedule 3A the FW Transitional Act to clarify that subsection 615A(3) of the Act does not apply in relation to an application for the termination of a collective Division 2B State employment agreement. Item 479: At the end of Schedule 7 662. This item would insert new Part 8 (Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period) and new item 29 at the end of Schedule 7 to the FW Transitional Act. Item 29--Terminating under the FW Act enterprise agreements made during the bridging period 663. New item 29 of Schedule 7 to the FW Transitional Act would clarify that subsection 615A(3) of the Act does not apply in relation to an application for the termination of an enterprise agreement made during the bridging period. Fair Work Legislation 120 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 13 -Sunsetting of "zombie" agreements etc. PART 13--SUNSETTING OF "ZOMBIE" AGREEMENTS ETC. Overview 664. Part 13 would amend the FW Transitional Act to sunset all remaining transitional instruments currently preserved by that Act. Amendments to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Item 480: Item 20 of Schedule 3 (heading) Item 481: After item 20 of Schedule 3 Item 482: After item 26 of Schedule 3A Item 483: At the end of Part 8 of Schedule 7 665. These items would amend the specified Schedules of the FW Transitional Act to automatically sunset all remaining transitional instruments covered by the Schedules. That includes agreement-based transitional instruments (Schedule 3), Division 2B State employment agreements (Schedule 3A), and enterprise agreements made during the 'bridging period' as defined (Schedule 7). In summary: • Agreement-based transitional instruments--include collective agreement-based transitional instruments made under predecessor legislation to the FW Act (including collective agreements, workplace determinations, preserved collective State agreements, pre-reform certified agreements, old IR agreements, section 170MX awards) and individual agreement-based transitional instruments (individual transitional employment agreements, preserved individual State agreements, Australian Workplace Agreements (AWAs) and pre-reform AWAs). • Division 2B State employment agreements--include collective Division 2B State employment agreements and individual Division 2B State employment agreements, established and approved under state industrial relations laws and recognised federally following the referral of powers by Division 2B referring states. • Enterprise agreements made during the bridging period (from 1 July 2009 to 31 December 2009)--that is, enterprise agreements that were assessed against an old test known as the 'no disadvantage test' (not the BOOT as modern awards did not commence operation until 1 January 2010). 666. These instruments are commonly referred to collectively as 'zombie agreements'. 667. Once a transitional instrument ends, it ceases to cover (and can never again cover) any employees, employers or other persons. Employers and employees covered by the remaining transitional instruments that would be sunsetted may make a replacement House of Representatives 121 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 13 - Sunsetting of "zombie" agreements etc. enterprise agreement. If a replacement enterprise agreement is not in place by the time of automatic sunsetting, a modern award may apply from that time. Schedule 3, item 20A--Automatic sunsetting of all remaining agreement-based transitional instruments Schedule 3A, item 26A--Automatic sunsetting of all remaining Division 2B State employment agreements Schedule 7, item 30--Automatic sunsetting of all remaining enterprise agreements made during the bridging period 668. Items 480 to 483 would amend the specified Schedules to the FW Transitional Act to provide rules relating to the automatic sunsetting of the three classes of 'zombie' agreements. These share a number of common features, which may be summarised as follows. 669. Schedules 3, 3A and 7 to the FW Transitional Act would be amended to: • automatically sunset the relevant class of zombie agreement at the end of the grace period for the agreement, if it has not already ceased to operate before that time (ie a default period of 12 months, which may be extended by the FWC so that any period so extended becomes the new default period); • require employers to give affect employees notice of automatic sunsetting within six months of commencement, including information about the automatic sunsetting, its timing, and the FWC's role in extending the default period; • set out the process for making an application to the FWC to extend the default period, including who may apply and how an application is made (noting there is no limit on the number of applications that may be made); • empower the FWC to extend the default period for a period of no more than 4 years at a time if the FWC is satisfied the applicable criteria have been met (see below); • set out rules for pending applications (ie where an application to extend the default period has been made but not decided at the time that period ends); and • for enterprise agreements made during the bridging period--provide for the effect of sunsetting (noting this is not required for other, comparable zombie agreements, as provision is already made in the FW Transitional Act for them). 670. Provision would be made for the FWC to (upon application) extend the default period to ensure the automatic sunsetting of zombie agreements does not operate harshly, including by leaving employees worse off. There is no limit to the number of extensions the FWC can make to the default period, provided that the requirements are satisfied on each occasion. Fair Work Legislation 122 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 13 -Sunsetting of "zombie" agreements etc. 671. For all zombie agreement types, the FWC would be required to (upon application) extend the default period for the agreement by no more than 4 years if satisfied that it is reasonable in the circumstances to do so: Schedule 3, new subparagraph 20A(6)(b); Schedule 3A, new subparagraph 26A(6)(b); Schedule 7, new subparagraph 30(6)(b)). All references are to Schedules to the FW Transitional Act. 672. Additionally, the FWC would also be required to (upon application) extend the default period for the agreement if satisfied that certain conditions apply, and it is otherwise appropriate in the circumstances to do so. In broad terms, this would require consideration of whether relevant bargaining for a new enterprise agreement is occurring (ie for the affected individual or group of employees (whether the agreement would cover the same, or substantially the same, group of employees), as the case may be) and, separately, whether the affected employee or employees (as the case may be) would be better off overall. 673. The proposed legislation sets out these conditions in more detail, reflecting whether the zombie agreement in question is an individual or collective instrument (as this would affect how the BOOT is applied). Item 484: After item 4B of Schedule16 Item 485: Paragraph 16(1)(d) of Schedule 16 Item 486: Subitem 16(1) of Schedule 16 (after table item 44G) 674. Item 484 would insert new item 4C into Schedule 16 to the FW Transitional Act, to make compliance with the proposed obligation to notify employees about automatic sunsetting enforceable and make related amendments. Item 4C--Compliance with obligation to notify employees about automatic sunsetting 675. New item 4C would create three new civil remedy provisions to make the proposed obligation to notify employees about sunsetting (across the three zombie agreement types) enforceable. Legislative notes would make clear that each subitem is a civil remedy provision and cross-references to item 16 of Schedule 16 to the FW Transitional Act and Part 4-1 of the FW Act. 676. Item 485 would amend paragraph16(1)(d) of Schedule 16 to the FW Transitional Act (which deals with compliance) to make a consequential amendment to take into account the new civil remedy provisions. 677. Item 486 would insert new table items 44H, 44J and 44K into the table of civil remedy provisions in subitem 16(1) of Schedule 16. Table items 44H, 44J and 44K identifies that an employee, industrial association that is entitled to represent the industrial interests of one or more employees covered by the relevant transitional instrument, or an inspector, has standing to apply for an order in a federal court or eligible State or Territory Court. The maximum penalty for a contravention would be 60 penalty units (5 House of Representatives 123 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 13 - Sunsetting of "zombie" agreements etc. times higher for bodies corporate). This is comparable with penalties for similar existing offences. For example, clause 4 of Schedule 16 to the FW Transitional Act provides that an employer who fails to comply with its obligation to notify employees about preserved redundancy provisions. Fair Work Legislation 124 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval PART 14--ENTERPRISE AGREEMENT APPROVAL Overview 678. Part 14 of the Bill would amend Divisions 3 and 4 of Part 2-4 of the FW Act to simplify requirements that need to be met for an enterprise agreement to be approved by the FWC, which are often regarded as overly prescriptive and complex. 679. Various steps that an employer must currently take within strict timeframes would be removed (for example, the requirement to take all reasonable steps to provide employees with access to the agreement during a 7 day 'access' period ending immediately before the start of the voting process). 680. The requirements to provide a NERR and to wait until at least 21 days after the last notice is given before requesting employees to vote would no longer apply to bargaining for a proposed single interest employer agreement, supported bargaining agreement or cooperative workplaces agreement but would be retained in the case of a proposed single enterprise agreement (where no single interest employer authorisation is in operation). 681. Where pre-approval requirements are removed, they would be replaced with one broad requirement for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. 682. The intention is to simplify the pre-approval requirements, while retaining sufficient safeguards for employees. This would encourage enterprise bargaining and also stop the FWC from having to refuse to approve enterprise agreements because of minor technical or procedural deficiencies that did not affect how employees voted on the agreement. 683. Some important safeguards would be included. The FWC would be required to publish a 'statement of principles' containing guidance for employers about how they can ensure employees have genuinely agreed. The statement of principles would be taken into account by the FWC when determining whether to approve an enterprise agreement. 684. For there to have been genuine agreement, the FWC would need to be satisfied that the employees requested to vote on the agreement have a sufficient interest in its terms and are sufficiently representative, having regard to the employees the agreement is expressed to cover. Amendments to the Fair Work Act 2009 Item 487: Section 12 (definition of access period) Item 488: Section 12 (definition of genuinely agreed) House of Representatives 125 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval 685. These items are consequential and would remove the definitions of 'access period' and 'genuinely agreed' from the Dictionary. Item 489: Subsection 173(1) (heading) Item 490: Subsection 173(1) Item 491: Subsection 173(2) (note) 686. These items would amend sections 173 and 174 to retain the requirement to take all reasonable steps to give a NERR to employees who will be covered by a proposed single-enterprise agreement (excluding a greenfields agreement and an agreement in relation to which a single interest employer authorisation is in operation). The requirement to provide a NERR would no longer apply to bargaining for a single interest employer agreement, supported bargaining agreement or cooperative workplaces agreement. Item 492: Subsection 174(3) Item 493: Subsection 174(4) 687. These items would repeal subsection 174(4) and are consequential upon the removal of the requirement to give a NERR to employees who will be covered by a proposed supported bargaining agreement. Item 494: Subsection 179(3) 688. This item would amend the requirement in subsection 179(3) for an organisation to provide an employer a document concerning benefits it can reasonably be expected to obtain from terms of an enterprise agreement by no later than the fourth day of the former 'access period'. Subsection 179(3) would instead require an organisation to provide the disclosure document a reasonable time before the voting process starts for the agreement. The amendment is consequential upon the repeal of the 'access period' referred to in subsection 180(4) and would streamline the bargaining process by providing more flexible timeframes. Item 495: Section 180 (heading) Item 496: Subsection 180(1) (heading) 689. These items are consequential on the removal of certain pre-approval requirements and the preservation (with modifications) of the requirements for employers to provide employees with disclosable benefits documents that they have prepared or received from organisations. Fair Work Legislation 126 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval Item 497: Subsections 180(2)-(4) 690. This item would remove the following pre-approval requirements that must currently be met by employers before the FWC can be satisfied an enterprise agreement has been genuinely agreed to: • taking all reasonable steps to ensure that employees are given access to a copy of the agreement and any material incorporated by reference in the agreement during a 7 day 'access period' ending immediately before the start of the voting process; and • taking all reasonable steps to notify employees, by the start of the 'access period', of the time, place and method for the vote. 691. To provide greater flexibility, these detailed requirements would be subsumed within the overarching requirement for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by employees. Guidance on how an employer can seek employees' genuine agreement would be included in the statement of principles published by the FWC under new section 188B. Item 498: Subsection 180(4A) (heading) Item 499: Subsection 180(4A) Item 500: Subsection 180(4A) Item 501: Paragraph 180(4A)(b) Item 502: Subsection 180(4B) Item 503: Paragraph 180(4B)(a) Item 504: Paragraph 180(4B)(b) Item 505: Subsection 180(4C) 692. These items concern the timing for providing disclosure documents about financial benefits employers and organisations would derive from the terms of an enterprise agreement, and are consequential upon the removal of the 'access period' in section 180(4). If an organisation gives an employer a disclosure document before the start of the voting process, the employer would be required to take all reasonable steps to ensure employees are given a copy or access to the document as soon as practicable after it was given. For disclosure documents prepared by an employer, the employer must provide a copy of, or access to, the document a reasonable time before the voting process starts. House of Representatives 127 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval Item 506: Subsections 180(5) and (6) 693. This item would repeal the following pre-approval requirements that must currently be met by employers before the FWC can be satisfied an enterprise agreement has been genuinely agreed: • taking all reasonable steps to ensure that the terms of the agreement, and their effect, are explained to relevant employees, and the explanation is provided in an appropriate manner taking in account employees' particular circumstances and needs. 694. Subsection 180(6) provides examples of the kinds of employees whose circumstances and needs must be taken into account for this purpose and would also be repealed. 695. Removing these detailed requirements is intended to provide greater flexibility without reducing employee safeguards. The FWC would still need to be satisfied that an enterprise agreement has been genuinely agreed to by employees. Guidance on how an employer can seek employees' genuine agreement would be included in the statement of principles published by the FWC under new section 188B. Item 507: Subsection 181(2) 696. This item would repeal subsection 181(2) to remove the rule that an employer must not request employees to vote on an agreement until at least 21 days after the day on which the last NERR is given for proposed single interest employer agreements, supported bargaining agreements and cooperative workplaces agreements. New subsection 181(2) has the effect of retaining the '21 days rule' in relation to a proposed single-enterprise agreement (excluding a greenfields agreement and an agreement in relation to which a single interest employer authorisation is in operation). Item 508: Subsection 186(2) (Note 1) 697. This item would amend Note 1 to subsection 186(2) and is consequential upon amendments to section 188. Item 509: Section 188 698. This item would repeal section 188 and insert a new section 188, dealing with requirements for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by employees (see section 186(2)(a)). The intention is to provide a more suitable, principles-based approach to protecting employees' rights to participate in genuine collective bargaining in good faith, rather than the current rigid, rules-based approach. Fair Work Legislation 128 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval Statement of principles 699. New subsection 188(1) would provide that the FWC must take into account the statement of principles made under section 188B when determining whether it is satisfied that an enterprise agreement has been genuinely agreed to. Sufficient interest and sufficiently representative 700. New subsection 188(2) would provide that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to unless the FWC is satisfied that the employees requested to vote on the agreement: • have a sufficient interest in the terms of the agreement; and • are sufficiently representative, having regard to the employees the agreement is expressed to cover. 701. A note to subsection 188(2) indicates that in the decision of One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved. 702. New subsection 188(2) is intended as a safeguard against agreements which are not the result of collective bargaining in good faith, including 'unrepresentative' and 'low voter cohort' agreements. For example, a small cohort of employees offered rates of pay above those provided in the enterprise agreement should not be capable of being found to have genuinely agreed (see, for example, Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266)). 703. New paragraph 188(2)(a) is directed at ensuring that employees must have a 'sufficient stake' in the terms of the agreement. For example, employees would not have a sufficient interest in the terms of an agreement if no genuine collective bargaining in good faith occurred as part of the agreement-making process. 704. New paragraph 188(2)(b) is intended to ensure that employees requested to vote on an agreement are sufficiently representative, having regard to the coverage terms or intended coverage of the agreement. For example, employees engaged in one industry, occupation or classification should not be capable of being found to have genuinely agreed to an enterprise agreement intended to cover employees across a substantially wider range of industries, occupations or classifications. 705. A small cohort of employees would also not be sufficiently representative where the agreement is intended to ultimately cover a much wider workforce following transfers of employment, possibly within a corporate group. Where notice of employee representational rights was required House of Representatives 129 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval 706. New subsections 188(3) and (4) would provide that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed unless it is satisfied that the employer has complied with any applicable requirements dealing with giving employees a NERR and not requesting employees to vote on the agreement until at least 21 days after the last NERR is given. 707. These requirements would only apply in respect of a proposed single-enterprise agreement (excluding a greenfields agreement and an agreement in relation to which a single interest employer authorisation is in operation). Minor errors may be disregarded 708. New subsection 188(5) would provide that the FWC may disregard minor procedural or technical errors in relation to certain requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors. 709. Following the removal of various detailed pre-approval requirements, this discretion would now only apply to the requirements relating to notices of employee representational rights and the '21 days rule' (for a proposed single-enterprise agreement, excluding a greenfields agreement and an agreement in relation to which a single interest employer authorisation is in operation) and the making of different kinds of enterprise agreements by employee vote (see subsections 182(1) and (2)). Regulations 710. New subsection 188(6) would allow regulations to prescribe further requirements that must be met for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Item 510: Paragraph 188A(a) 711. This item would make a minor amendment to paragraph 188A(a), consequential upon the repeal of paragraph 188(1)(c). The effect of section 188A would remain that a failure to comply with obligations relating to disclosure documents does not prevent an enterprise agreement from being approved. Item 511: After section 188A Statement of principles on genuine agreement 712. New subsection 188B(1) would provide that the FWC must make a statement of principles containing guidance for employers on how to ensure their employees have genuinely agreed to an enterprise agreement. 713. The statement of principles must be published on the FWC's website, as well as by any other means the FWC considers appropriate (new subsection 188B(2)). Fair Work Legislation 130 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval 714. The FWC would be required to take into account the statement of principles when determining whether it is satisfied that an enterprise agreement has been genuinely agreed (new subsection 188(1)). 715. The statement of principles would be required to deal with the following matters: • informing employees of bargaining for a proposed enterprise agreement; • informing employees of their right to be represented by a bargaining representative; • providing a reasonable opportunity for employees to consider a proposed agreement; • explaining the terms of a proposed agreement and their effect; • providing a reasonable opportunity to vote in a free and informed manner, including by providing information about the time, place and method for the vote; • any matter prescribed by the FW Regulations; • any other matters the FWC considers relevant. 716. The Statement of Principles will guide parties as to how the FWC will consider particular issues when determining whether the proposed enterprise agreement has been 'genuinely agreed'. These scenarios could include issues such as whether bargaining genuinely occurred prior to voting and whether employee organisation bargaining representatives were appropriately involved in bargaining. 717. New subsection 188B(4) provides that the statement of principles is a legislative instrument to which section 42 of the Legislation Act (disallowance) does not apply. The FWC would make the statement to provide guidance for employers about ways to ensure an enterprise agreement is genuinely agreed to by their employees. The statement would not create new rights or obligations for employers and employees but would be taken into account by the FWC when determining whether an enterprise agreement has been genuinely agreed. The statement is intended to assist parties in moving from more prescriptive pre-approval requirements to the principles-based approach to genuine agreement proposed by these amendments. Making the statement would therefore be divorced from the broader political process and largely explanatory and facilitative (i.e. directed at assisting persons to comply with the new provisions). The statement would be independent of Parliament and not require additional Parliamentary scrutiny. Item 512: Paragraph 211(3)(a) Item 513: Paragraphs 211(3)(d), (e) and (f) Item 514: After paragraph 211(3)(g) Item 515: Paragraph 211(3)(ha) House of Representatives 131 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 14 - Enterprise agreement approval Item 516: Paragraph 211(3)(hb) Item 517: Paragraph 211(3)(j) Item 518: Subsection 211(6) 718. These items would modify section 211 to provide that the simplified enterprise agreement pre-approval requirements also apply when the FWC is determining whether a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2-4 of the FW Act has been genuinely agreed to by relevant employees. Item 519: Subsection 229(3) (note) 719. This item would modify the Note to subsection 229(3) to make clear that only those employers required to give a NERR under subsection 173(1) cannot request employees to vote for the agreement until 21 days after the last NERR is given. Item 520: After paragraph 576(2)(aa) 720. This item would expand the functions of the FWC to include a new function of promoting good faith bargaining and the making of enterprise agreements. Item 521: Subsection 598(1) 721. This item would amend subsection 598(1) to provide that the statement of principles is not a decision of the FWC for the purpose of Part 5-1 of the FW Act. Fair Work Legislation 132 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 15 - Initiating bargaining PART 15--INITIATING BARGAINING Overview 722. The proposed amendments would simplify the process for initiating bargaining where the proposed single-enterprise agreement would replace an existing agreement that has a nominal expiry date within the past 5 years and that has a scope substantially similar to the proposed agreement. The making of the existing agreement must also not have caused a single interest employer authorisation to have ceased to be in operation. Where these conditions are met, the amendments would enable an employee, via a bargaining representative, to initiate bargaining for an agreement simply by making a written request to the employer. This method for initiating bargaining would not apply to a proposed greenfields agreement, a multi enterprise agreement (i.e. a cooperative workplaces agreement or a supported bargaining agreement) or a single-enterprise agreement in relation to which a single interest authorisation is in operation. 723. The amendments would deliver on the Jobs and Skills Summit outcome of removing unnecessary limitations on access to enterprise agreements by reducing barriers to commencing bargaining. Amendments to the Fair Work Act 2009 Item 522: After paragraph 173(2)(a) 724. This item would insert a new paragraph 173(2)(aa) to expand the existing definition of 'notification time' in the FW Act. The existing paragraph 173(2) defines when the 'notification time' for a proposed qualifying single-enterprise agreement occurs. The notification time is significant as it marks the beginning of bargaining for a new enterprise agreement. 725. The purpose of this item is to add a new notification time. The new notification time would occur when an employer receives a written request from an employee representative to bargain under new subsection 173(2A) for a new replacement agreement. This process is explained in item 523 below. Item 523: After subsection 173(2) 726. This item would add a new subsection 173(2A) into the existing section 173. Existing section 173 sets out the requirements for notices of representational rights. A relevant employer must take all reasonable steps to give notice of the right to be represented by a bargaining representative to all relevant employees as soon as practicable, and not later than 14 days, after the notification time for the agreement. Under the existing framework, the notification time is when the employer agrees to or initiates bargaining, or when a majority support determination, scope order, or eligible authorisation in relation to a proposed new enterprise agreement comes into operation. Existing section 173 also sets out circumstances in which an employer is not required to give a House of Representatives 133 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 15 Initiating bargaining notice of representational rights; and provides that regulations may be made to prescribe how notices may be given. 727. This item would amend the existing framework by setting out the requirements for the new notification time provided by new paragraph 173(2)(aa). The notification time would occur when a bargaining representative of an employee for a proposed replacement agreement requests in writing that the employer commence bargaining and the following criteria are met: • the proposed agreement will replace an earlier agreement that has passed its nominal expiry date (new paragraph 173(2A)(a)); and • the making of that agreement did not cause a single interest employer authorisation to cease to operate (new paragraph 173(2A)(b)); and • the nominal expiry date of the earlier agreement was within the last 5 years (new paragraph 173(2A)(c)); and • the same, or substantially the same, group of employees will be covered by the proposed agreement as was covered by the earlier agreement (new paragraph 173(2A)(d)). New paragraph 173(2A)(b) is intended to cover agreements made before or after commencement where a single interest authorisation applied to the bargaining. 728. This amendment would simplify the process for initiating bargaining in circumstances where the parties have previously bargained for a qualifying single-enterprise agreement. This is because an employee's bargaining representative could meet the definition of 'notification time' without needing either the consent of the employer to bargain or the FWC to have made a determination, order or authorisation specified in section 173. The amendment would not be available to initiate bargaining for a proposed greenfields agreement, a multi-enterprise agreement (i.e. a cooperative workplaces agreement or a supported bargaining agreement) or a single-enterprise agreement in relation to which a single interest employer authorisation is in operation. Item 524: After paragraph 230(2)(a) 729. Item 524 would add a new paragraph 230(2)(aa) into the existing section 230. Existing section 230 of the FW Act sets out the circumstances in which the FWC may make a bargaining order. A bargaining order is an order which the FWC may make which specifies the actions to be taken by, and requirements imposed upon, bargaining representatives for the purpose of meeting good faith bargaining requirements or promoting fair and efficient bargaining if there are multiple bargaining representatives. In making a bargaining order, the FWC must be satisfied of the matters in existing subsections 230(2), 230(3) and 230(4). Fair Work Legislation 134 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 15 - Initiating bargaining 730. Existing subsection 230(2) requires the FWC to be satisfied, before making a bargaining order, that either the employer has consented to or authorised bargaining; or that a specified determination, order or authorisation in relation to the proposed agreement is in operation. The new item would enable the FWC to make a bargaining order without the employer having consented to or initiated bargaining; or without an eligible determination, order or authorisation being in operation. Instead, the FWC would be able to issue a bargaining order if the employer or employers have received a request to bargain under proposed new subsection 173(2A) (and if the other criteria in section 230 are satisfied) House of Representatives 135 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 16 - Better off overall test PART 16--BETTER OFF OVERALL TEST Overview 731. Division 4 of Part 2-4 of the FW Act sets out the process for the FWC to approve an enterprise agreement, which includes an assessment against the BOOT. An enterprise agreement will pass the BOOT if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee. 732. Existing section 190 allows the FWC to accept written undertakings from employers to address concerns (among other things) that an agreement may not pass the BOOT. 733. Part 16 would amend the BOOT (section 193) to ensure it is simple, flexible, and fair, by: • requiring the FWC to give consideration to the views of specified persons, including primary consideration to any common views expressed by the specified bargaining representatives, when applying the BOOT; • applying the BOOT as a global assessment (ie not a line-by-line comparison between the proposed agreement and relevant modern award); • requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time; • enabling the FWC to directly amend or excise a term in an agreement that does not otherwise meet the BOOT; • enabling the BOOT to be reassessed if there has been a material change in working arrangements or the relevant circumstances were not properly considered during the approval process (reconsideration process). 734. These measures address concerns about the workability of the current framework, and include appropriate safeguards to protect employees. They implement a primary outcome of the Jobs and Skill Summit in removing unnecessary complexity in the agreement-making process for workers and employers. 735. The principal safeguard is the 'reconsideration process', which would allow employers, employees or their representatives to seek a reassessment of the BOOT where there has been a material change in working arrangements, or where the relevant circumstances were not properly considered during the approval process. The intention of the reconsideration process is to permit adjustments to the bargained outcome to the extent necessary to address the FWC's concerns, not to reduce the entitlements or interfere with the working arrangements for employees who are not affected by the concerns, or unnecessarily disrupt the operations of the enterprise. 736. The FWC would have discretion to work with the parties during the approval process in a constructive manner, to consider specific objections and to amend or excise terms that Fair Work Legislation 136 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 16 -Better off overall test do not otherwise meet the BOOT. This would limit the use of undertakings which can make it harder for workers and managers to interpret an agreement, lead to future legal disputes if poorly drafted, and cause delays in agreements commencing. Item 525: After section 191 737. This item would insert new sections 191A and 191B. Section 191A--FWC may approve an enterprise agreement with amendments Section 191B--Effect of amendment specified by FWC 738. New section 191A would enable the FWC to address concerns that an agreement submitted for its approval does not pass the BOOT, by amending the agreement. 739. By new subsection 191A(2), the FWC may approve the agreement if satisfied that an amendment specified by the FWC addresses the concern. 740. If intending to do so, the FWC may seek the views of any of the persons specified in subsection 191A(3). 741. New section 191B would set out the effect of an amendment specified by the FWC. 742. The FWC would be required to note any amendment for an agreement in its approval decision for the decision (see new subsection 201(4)). 743. These provisions are intended to operate similarly to the process for accepting undertakings in existing sections 190-191, while being more direct and reducing delays. Item 526: Subsection 193(1) 744. This item would remove the reference to 'prospective award covered employee' from existing subsection 192(1). This would ensure that, for non-greenfield agreements, the BOOT is assessed in relation to existing employees and reasonably foreseeable patterns or kinds of work, or types of employment. Item 527: Subsection 193(7) 745. This item would omit existing subsection 193(7), as it moves to new subsection 193A(7). Item 528: Applying the better off overall test 746. This item would insert new section 193A. Section 193A--Applying the better off overall test 747. New subsection 193A(1), would apply for the purpose of determining whether an enterprise agreement passes the BOOT. 748. New subsection 193A(2) would clarify that the BOOT operates as a global assessment (not a line-by-line comparison) of whether each employee who is, or would be covered House of Representatives 137 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 16 - Better off overall test by the agreement at the test time would be better off. The global assessment must be carried out having regard to: • the terms of the agreement which would be more beneficial (ie relative to the relevant modern award terms); and • the terms of the agreement which would be less beneficial (ie relative to the relevant modern award terms). 749. This approach reflects the existing case law: see for example Re Armacell Australia Pty Ltd [2010] FWAFB 9985; (2010) 202 IR 38 at [41]. It means, for example, that a term of a proposed agreement may be less beneficial, providing there are (in the FWC's view) sufficient offsets elsewhere in the agreement. 750. When an agreement results in significant financial detriment for employees compared to the relevant award, it is unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees such as to enable the agreement to pass the BOOT: see for example Re Loaded Rates Agreement [2018] FWCFB 3610. For example, the intention is that 'payments in kind' which are generally optional, contingent or both, such as the provision of food or drink in lieu of money, should not be treated as beneficial for purposes of the assessment. See also the requirement that wages be paid in money in existing section 323(1)(b) of the FW Act. 751. New subsection 193A(3) would require the FWC to consider any views relating to whether the agreement passes the BOOT that have been expressed by any of the specified persons. 752. New subsection 193A(4) would require primary consideration be given to any common view on the point expressed by all of the following: • the bargaining representatives for the employer or employers that are covered by the agreement; and • the bargaining representatives of award covered employees for the agreement, other than a bargaining representative that is not an employee organisation. The purpose of this provision is to ensure the FWC gives primacy to the common views of employers and employee organisations where applicable. 753. This would not apply if the agreement is a greenfields agreement (new subsection193A(5)). 754. By new subsection 193A(6), the FWC could only have regard to patterns or kinds of work, or types of employment if they are reasonably foreseeable at the test time. Employers could not be required to provide undertakings in relation to hypothetical kinds of work that are not reasonably foreseeable: see for example Re Officeworks Limited [2019] FWCA 6900. Fair Work Legislation 138 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 16 -Better off overall test 755. This measure would protect the integrity of the bargaining process by ensuring the BOOT is applied fairly and reasonably while preventing unrepresentative agreements being formed with small voter cohorts. 756. New subsection 193A(7) would reflect existing subsection 193(7), which moves into the new section but remains unchanged. Item 529: At the end of section 201 757. This item would insert new subsection 201(4), to require the FWC to note any amendment it makes under new subsection 191A(2) in its approval decision. This is consistent with the requirement that the FWC note any undertakings in its approval decision (subsection 201(3)). Item 530: At the end of subsection 211(2) 758. Existing section 211 sets out when the FWC must approve a variation of an enterprise agreement. In applying the BOOT, as directed by paragraph 211(1)(a), sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings) are disapplied (existing paragraph 211(2)(c)). Consistent with that approach, this item would disapply sections 191A and 191B (which deal with the approval of enterprise agreements with amendments). That is because the FWC may approve a variation with amendments via the process in new sections 213A and 213B. Item 531: After subsection 211(4) 759. The FW Act modifies the BOOT for applications to vary greenfields agreements (existing subsection 211(4)). A greenfields agreement as proposed to be varied (where employees have been employed) is assessed as if it were a non-greenfields agreement. 760. This item would modify BOOT as it applies in new section 193A, so it has a consistent, modified operation for proposed variations of greenfields agreements across both sections (ie sections 193 and proposed new section 193A). Item 532: After section 213 Item 533: After section 215 761. These items would insert new sections 213A, 213B and 215A into the FW Act, to replicate the effect of new sections 191A and 191B and new subsection 201(4) in relation to proposed variations of enterprise agreements. Item 534: After Division 7 of Part 2-4 762. This item would insert new Division 7A (Reconsideration of whether an enterprise agreement passes the BOOT), including new sections 227A--227D. 763. Under the proposed reforms, the FWC would apply the BOOT only having regard to patterns or kinds of work, or types of employment if they were reasonably foreseeable at the relevant time. If these things change, or employees' circumstances were not House of Representatives 139 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 16 - Better off overall test properly considered, the reconsideration process provides an important mechanism to have the BOOT reassessed to ensure employees are not left worse off. 764. The intention of the reconsideration process is to permit adjustments to the bargained outcome to the extent necessary to address the FWC's concerns, not to reduce the entitlements or interfere with the working arrangements for employees who are not affected by the concerns, or unnecessarily disrupt the operations of the enterprise. Section 227A--Application for FWC to reconsider whether an enterprise agreement passes the better of overall test 765. New section 227A would enable a specified person to apply to the FWC to reconsider whether their enterprise agreement passes the BOOT if: • (before approving the agreement) the FWC had regard to certain patterns or kinds of work or types of employment etc., but • at the test time or a later time, award covered employees for the agreement engaged in other kinds of work or other types of employment etc., to which the FWC did not have regard. 766. New subsection 227A(3) would adjust the 'test time' for reconsideration applications. Section 227B--Reconsideration of whether an enterprise agreement passes the better off overall test 767. If the prerequisites for reconsideration are met, new subsection 227B(1) would require the FWC (upon application by a specified person) to reconsider whether the enterprise agreement passes the BOOT. 768. New subclause 227B(2) would modify the BOOT (i.e. existing section 193 and proposed new section 193A) so it may apply to reconsiderations. 769. New subsection 227B(3) would empower the FWC to accept an undertaking or amend the agreement, if concerned that the enterprise agreement did not pass the BOOT, and this action would address the concern. 770. By new subsection 227B(4), an amendment would operate from 7 days after the FWC made the amendment or, if a later day was specified, that later day. Amendments could not operate retrospectively. Section 227C--Effect of undertakings Section 227D--Effect of amendment 771. New sections 227C and 227D would set out the effect of undertakings or an amendment specified by the FWC. Fair Work Legislation 140 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 17 - Dealing with errors in enterprise agreements PART 17--DEALING WITH ERRORS IN ENTERPRISE AGREEMENTS Overview 772. This Part would remove unnecessary complexity in the agreement-making process by amending the FW Act to: • simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and • provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC. 773. This policy implements one of the outcomes of the Jobs and Skills Summit in relation to boosting job security and wages, and creating safe, fair and productive workplaces (ie removing unnecessary complexity for workers and employers). Amendments to the Fair Work Act 2009 Item 535: After Subdivision B of Division 7 of Part 2-4 774. This item would insert new Subdivision BA into Division 7 of Part 2-4, including new section 218A. Section 218A--Variation of enterprise agreements to correct or amend errors, defects or irregularities 775. New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made. 776. This addresses a regulatory gap, as the existing 'slip rule' in section 602 enables the FWC's decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453. 777. By new subsection 218A(2), the FWC would be able to vary an enterprise agreement on its own initiative, or on application by a specified party. 778. By new subsection 218A(3), the variation would operate from the day specified in the FWC's decision. 779. The new section would complement the FWC's existing power to vary enterprise agreements to remove ambiguity or uncertainty (existing sections 217-217A). Item 536: After section 602 780. This item would insert new sections 602A and 602B after existing section 602. House of Representatives 141 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 17 - Dealing with errors in enterprise agreements Section 602A--Validation of approval of enterprise agreements Section 602B--Validation of approval of variation of enterprise agreements 781. New sections 602A and 602B would address a problem that arises if a party erroneously submits the wrong version of an agreement or variation to the FWC for approval (ie a draft, not being the enterprise agreement or variation that was made by the parties), and it is approved. 782. The provisions would confer a discretion on the FWC to validate the relevant approval decision, as if the error had not occurred, and the decision had been made by reference to the correct version (ie the agreed enterprise agreement or variation). It would be for the FWC to determine whether an error had occurred. 783. The validation process could commence on the FWC's own initiative or on application (new subsections 602A(2) or 602B(2)). Fair Work Legislation 142 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes PART 18--BARGAINING DISPUTES Overview 784. The amendments in Part 18 of Schedule 1 would support the FWC to assist parties involved in bargaining for a new enterprise agreement to resolve disputes arising in bargaining. 785. The amendments would provide for the FWC to issue an intractable bargaining declaration if satisfied, among other things, that there is no reasonable prospect of the bargaining parties reaching agreement. 786. If the FWC makes an intractable bargaining declaration, the FWC would consider whether to provide the parties with a further period in which to negotiate following the intractable bargaining declaration (a post-declaration negotiating period). 787. Whether to allow the parties a post-declaration negotiating period would be in the discretion of the FWC, having regard to the circumstances and whether a post- declaration negotiating period might assist the parties to reach agreement. 788. Following any post-declaration negotiation period, the amendments would provide for the FWC to make a workplace determination to resolve any matters on which agreement had not been reached by the parties. 789. The amendments would repeal the existing provisions for serious breach declarations and bargaining-related workplace determinations as these provisions have not been effective in assisting parties to resolve bargaining disputes and would no longer be required following the commencement of the new intractable bargaining provisions. 790. These amendments support the Jobs and Skills Summit outcome of giving the FWC the capacity to proactively help workers and businesses reach agreements that benefit them. Amendments to the Fair Work Act 2009 Item 537: Section 12 (definition of bargaining related workplace determination) 791. Section 12 of the FW Act contains the Dictionary. This item would repeal the definition of a bargaining related workplace determination. 792. This definition would no longer be required due to the repeal of the existing provisions regarding bargaining related workplace determinations. Item 538: Section 12 793. This item would include in the Dictionary in section 12 of the FW Act signpost definitions of intractable bargaining declaration and intractable bargaining workplace determination. The definitions would provide cross references to the relevant sections of the FW Act that would define these terms. House of Representatives 143 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes Item 539: Section 12 (definition of post-declaration negotiating period) 794. This item would amend the existing definition of a post-declaration negotiating period that applies to bargaining related workplace determinations to refer to new subsection 235A(1), which defines the term by reference to the new intractable bargaining workplace determinations. Item 540: Section 12 (definition of serious breach declaration) 795. This item would repeal the definition of serious breach declaration. This definition would no longer be required due to the repeal of existing provisions regarding serious breach declarations. Item 541: Section 12 (paragraph (c) of the definition of workplace determination) 796. This item would make a technical amendment to the definition of workplace determination to repeal the reference to a bargaining related workplace determination and replace it with a reference to an intractable bargaining workplace determination. Item 542: Section 169 (paragraph beginning "Division 8 provides") 797. Existing section 169 contains the Guide to Part 2-4 of the FW Act, which relates to enterprise agreements. This item would substitute the reference to serious breach declarations with a reference to intractable bargaining declarations. Item 543: Subdivision B of Division 8 of Part 2-4 798. This item would repeal existing Subdivision B of Division 8 of Part 2-4 of the FW Act, which relates to applications for serious breach declarations. The Subdivision would be substituted with new provisions dealing with applications for intractable bargaining declarations as set out below. Section 234-Applications for intractable bargaining declarations 799. New section 234 would provide that a bargaining representative for certain types of proposed enterprise agreements may apply to the FWC for an intractable bargaining declaration in relation to the agreement. 800. A bargaining representative for a greenfields agreement would not be able to apply for an intractable bargaining declaration. A mechanism for resolving bargaining disputes in relation to proposed greenfields agreements that are single-enterprise agreements exists elsewhere in the FW Act (see section 178B - Notified negotiation period for a proposed single enterprise agreement that is a greenfields agreement). 801. A note under new section 234 would make clear that the consequence of an intractable bargaining declaration being made is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination. Fair Work Legislation 144 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes 802. New subsection 234(2) would provide that an application for an intractable bargaining declaration must not be made in relation to a proposed multi-enterprise agreement unless a supported bargaining authorisation is in operation in relation to the agreement. This means that an application for an intractable bargaining declaration must not be made in relation to a proposed cooperative workplace agreement. 803. Bargaining representatives for a proposed cooperative workplace agreement may still seek the assistance of the FWC when bargaining. Applications may be made under section 240 of the FW Act where all bargaining representatives for the proposed cooperative workplace agreement have agreed to the making of the application. Section 235-When the FWC may make an intractable bargaining declaration 804. New section 235 would set out when the FWC may make an intractable bargaining declaration. The FWC has a discretion to make an intractable bargaining declaration if a bargaining representative has made an application for such a declaration and the FWC is satisfied of the matters set out in new subsection 235(2). 805. New subsection 235(2) would list all of the matters of which the FWC must be satisfied before making an intractable bargaining declaration. The first of those matters would be that the FWC has already dealt with the dispute under section 240 of the FW Act and the applicant for the intractable bargaining declaration has participated in the processes that the FWC undertook under section 240. 806. The FWC has a broad range of powers that it may use under section 240 of the FW Act to assist bargaining representatives to resolve a dispute that arises while bargaining. It may direct persons to attend a conference where the FWC considers that the attendance of those persons may assist in resolving the dispute (see section 592 of the FW Act). Apart from arbitration, it may deal with the dispute in whichever way it considers appropriate (see section 595 of the FW Act). Those ways include but are not limited to mediation, conciliation, making a recommendation or expressing an opinion. The FWC may also arbitrate under section 240 of the FW Act but only where all bargaining representatives agree. The form of such an arbitration is not fixed. For example, it would be open to the parties to agree on a process of final offer arbitration to resolve their dispute. In dealing with a dispute, the FWC may exercise any of the powers that it has under Subdivision B of Division 3 of Part 5-1 of the FW Act. Those powers include the powers that the FWC has to inform itself in relation to any matter before it in such manner as it considers appropriate (see section 590 of the FW Act). That could include, for example, requiring persons to attend before the FWC, requiring copies of documents or records or conducting a conference. 807. Before making an application for an intractable bargaining declaration, a bargaining representative would be required to have participated in the FWC's processes under section 240, whether or not the bargaining representative made the application under section 240 for the FWC to deal with a bargaining dispute. House of Representatives 145 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes 808. The second of the matters of which the FWC would be required to be satisfied before making an intractable bargaining declaration is that there is no reasonable prospect of agreement being reached if the FWC does not make the declaration. This does not require the FWC to be satisfied that an agreement could never be reached but rather that the chance of the parties reaching agreement themselves is so unlikely that it could not be considered a reasonable chance. It is unlikely that the FWC would reach such a state of satisfaction unless the parties had been bargaining for an extended period and had exhausted all reasonable efforts to reach agreement, but the provision leaves it up to the FWC to determine, in all the circumstances, whether it is satisfied that there is no reasonable prospect of the parties reaching agreement if the FWC does not make the declaration. The FWC is also required to have first exercised its powers under existing section 240 to attempt to resolve the dispute (see above). 809. The third matter of which the FWC would be required to be satisfied before making an intractable bargaining declaration is whether it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement. This would provide scope for the FWC to, for example, consider the dispute in the context of the whole of the relationship of the parties, the history of the bargaining, the conduct of the parties, the prevailing economic conditions, and the bargaining environment. 810. New subsection 235(3) would set out what the declaration must specify including the proposed enterprise agreement to which the declaration relates, the date on which the declaration is made and any other matter that is prescribed by the FWC's procedural rules. The date on which the declaration is made may be relevant to determining the duration of any post-declaration negotiating period that may be specified by the FWC under new section 235A. 811. New subsection 235(4) would establish the period of operation of an intractable bargaining declaration. The declaration would come into operation on the day it is made and cease to operate when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination that relates to the proposed enterprise agreement specified in the declaration. Section 235A-Post-declaration negotiating period 812. New section 235A would allow the FWC to, when making an intractable bargaining declaration, specify a period after the making of the declaration for the parties to continue to negotiate with a view to reaching an enterprise agreement before the FWC proceeds to make a workplace determination. Such a period would be the post- declaration negotiating period. The post-declaration negotiating period would start on the day that an intractable bargaining declaration is made and end on the day specified in the declaration or on a later day if the FWC considers it appropriate to extend the period after taking into account the views of the bargaining representatives (see new subsection 235A(2)). New section 235A would not mandate the provision of a post- Fair Work Legislation 146 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes declaration negotiating period. It would be a matter for the FWC to specify whether there is to be a post-declaration negotiating period and, if so, its duration. 813. A note under new subsection 235A(1) would make clear that the FWC could not proceed to make an intractable bargaining workplace determination while the post- declaration negotiating period was on foot but could provide, for example, conciliation assistance to the parties. 814. If the FWC did not specify a post-declaration negotiating period in the declaration, the FWC would prepare immediately to make an intractable bargaining workplace determination under new section 269. In practice, this would likely involve the FWC issuing directions to the parties to file evidence and submissions. Item 544: Section 258 815. Existing section 258 of the FW Act contains the Guide to Part 2-5 of the FW Act, which relates to workplace determinations. This item would omit the references to bargaining related workplace determinations and substitute them with references to intractable bargaining workplace determinations and would provide a summary of when the FWC must make an intractable bargaining workplace determination. Item 545: Division 4 of Part 2-5 (Heading) 816. This item would repeal the heading of this Division of the FW Act and substitute it with a new heading that refers to intractable bargaining workplace determinations, rather than the repealed bargaining related workplace determinations. Item 546: Section 269 817. This item would repeal the existing section 269 and replace it with new section 269, which sets out when the FWC must make an intractable bargaining workplace determination. New section 269 would require the FWC to make an intractable bargaining workplace determination as quickly as possible after the post-declaration negotiating period or, if there is no such period, then as quickly as possible after the intractable bargaining declaration is issued. If an enterprise agreement has been made during the post-declaration negotiating period, the declaration would cease to operate (see new subsection 235(4)) and the FWC would not be obliged to make an intractable bargaining workplace determination. 818. The note under new section 269 would make clear that the FWC must be constituted by a Full Bench to make an intractable bargaining workplace determination. Item 547: Section 270 (heading) 819. This item would make a technical amendment to the heading to existing section 270 to replace the reference to a bargaining related workplace determination with a reference to an intractable bargaining workplace determination. This would reflect the repeal of House of Representatives 147 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes the bargaining related workplace determination provisions and the enactment of the intractable bargaining workplace determination provisions. Item 548: Subsection 270(1) Item 549: Subsections 270(4), (5) and (6) 820. These items would make the necessary technical amendments to existing section 270 to specify the terms of an intractable bargaining workplace determination. Existing subsections 270(4), (5) and (6) would be repealed and replaced with a new provision dealing with coverage of an intractable bargaining workplace determination that would provide that an intractable bargaining workplace determination must be expressed to cover each employer that would have been covered by the agreement, the employees who would have been covered by the agreement and each employee organisation (if any) that was a bargaining representative of those employees. Item 550: Section 271 Item 551: Section 271A 821. These items would make technical amendments to existing sections 271 and 271A to replace references to 'bargaining related workplace determination' (or determinations) with references to 'intractable bargaining workplace determination' (or determinations). Item 552: Subsection 274(3) 822. This item would repeal existing subsection 274(3) and substitute it with a new subsection 274(3) that defines an 'agreed term' in relation to an intractable bargaining workplace determination. Agreed terms must be included in an intractable bargaining workplace determination under existing subsection 270(2), which is not affected by the proposed amendments in the Bill. A note under new subsection 274(3) would make that clear. 823. Agreed terms would be defined as any terms of the proposed enterprise agreement which the bargaining representatives had already agreed prior to the expiration of the post-declaration negotiating period, if any, or at the time that the intractable bargaining declaration was made, if there was no post-declaration negotiating period. Item 553: Paragraph 413(7)(c) 824. This item would amend existing subsection 413(7), which provides that one of the requirements for industrial action to be protected industrial action is that it not be subject to a suspension or termination order that is in operation. The amendment would replace the existing reference to a serious breach declaration with a reference to an intractable bargaining declaration. 825. The intent of this amendment is to ensure that parties who are subject to an intractable bargaining declaration would be unable to take protected industrial action. Once an Fair Work Legislation 148 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 18 - Bargaining disputes intractable bargaining declaration has been issued, the parties no longer need to take protected industrial action to support the inclusion of terms in an enterprise agreement as the FWC will make a workplace determination, subject to the outcome of negotiations during any post-declaration negotiating period. House of Representatives 149 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action PART 19--INDUSTRIAL ACTION Overview 826. This Part would: • Amend the PABO process to extend the validity of a PAB for a period of 3 months from the date of declaration of the ballot results; • empower the FWC to 'pre-approve' persons authorised to conduct PABs, including by electronic means, in addition to the AEC; • require the FWC to direct bargaining representatives to attend a conference during the PAB period and enable the FWC to conduct the conference; and • include a new notice requirement for employee bargaining representatives to provide 120 hours' written notice for a single interest employer agreement and a supported bargaining agreement before protected industrial action may be taken. Division 1--When action must occur to be authorised by protected action ballot order Amendments to the Fair Work Act 2009 827. These amendments would provide employees a longer period in which to commence protected industrial action from the date of declaration of the ballot results, which will remove a perverse incentive for employees to take immediate industrial action. Item 554: Section 411 (after the heading) Item 555: Section 411 Item 556: At the end of section 411 828. These items would make two technical amendments by adding the new heading 'Employer response action' and transforming the existing provisions into subsection 411(1). The items would then insert a new paragraph 411(1)(d) and two new subsections 411(2) and (3). 829. The new paragraph 411(1)(d) and the new subsections 411(2) and (3) would be additional requirements of section 411 for employer response action to be protected industrial action. 830. New paragraph 411(1)(d) would provide that for employer response action to be protected industrial action it must meet the additional requirements set out in section 411. 831. New subsection 411(2) provides that new subsection 411(3) would apply if the industrial action, which would be defined as 'employer action', is organised or engaged in by an employer in response to industrial action authorised by a PAB. Fair Work Legislation 150 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action 832. New subsection 411(3) provides that 'employer action', as defined in subsection 411(2), would not be considered 'employer response action' if the employer action occurs outside the 3-month period that applies to the ballot under new subsection 459(1A). 833. These amendments would clarify that employers can only take response action following a successful PAB if it starts and finishes within the three-month period commencing on the date of the declaration of results of the ballot. That three-month period is the only period in which protected industrial action can be undertaken when authorised by a particular PAB. Item 557: Paragraph 459(1)(c) Item 558: Paragraph 459(1)(d) 834. The FW Act provides that for industrial action to be protected there are several requirements that must be met. These include that appropriate notice of the industrial action is given and that the action is authorised by a PAB. 835. Section 459 sets out the circumstances in which industrial action is authorised by a PAB. 836. Item 557 would amend paragraph 459(1)(c), removing a semi-colon and the conjunction 'and' after the word 'action' and replacing it with a period after the word 'action'. This amendment is consequential to the repeal of paragraph 459(1)(d) by item 558. This item would remove the existing requirement that industrial action commence during the 30-day period following the date of the declaration of the results of the ballot, or the extended period if the FWC has extended the period under subsection 459(3). This subsection would be repealed by item 560. Item 559: After subsection 459(1) 837. This item would insert new subsection 459(1A) to provide that industrial action is not authorised by a PAB if it occurs outside the three-month period starting from the date the results were declared for a successful PAB. The existing period in which industrial action must commence is 30 days, noting that the FWC may extend the 30-day period by up to 30 days in some circumstances. 838. The new period of three months encourages consensus between employers and employees as there will no longer be a requirement that employees commence all forms of industrial action within 30 days. Requiring all forms of industrial action to be taken within 30 days can unnecessarily inflame bargaining disputes. That three-month period is the only period in which protected industrial action can be undertaken when authorised by a particular PAB. The amendments will allow employees to initiate all forms of industrial action authorised by the PAB over the three-month period and the action would remain protected action. At the end of the three-month period, employee House of Representatives 151 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action bargaining representatives would need to apply for another PABO before any further protected industrial action could take place. Item 560: Subsection 459(3) 839. This item would repeal subsection 459(3), which provides that the FWC may extend the 30-day period during which industrial action authorised by a PAB commences for a further 30 days if the applicant applies to the FWC for an extension and the period has not previously been extended. Subsection 459(3) is no longer required because of the new three-month period proposed by Item 559 above. Division 2--Protected action ballot agents Amendments to the Fair Work Act 2009 840. Division 8 of Part 3-3 of the FW Act provides for PABs. These ballots of employees 'authorise' any industrial action that might take place after a successful PAB, provided it is authorised by the PAB. The scheme of the FW Act is to make the AEC the default PAB agent while providing the capacity for an applicant to nominate an alternative PAB agent. 841. These amendments remove the AEC as the default PAB agent and empower the FWC to 'pre-approve' a person as an 'eligible PAB agent'. More than one person may be approved by the FWC. The AEC is defined as an 'eligible PAB agent'. and does not need to be approved by the FWC. In effect, there may be a panel of alternative agents who can be appointed as an alternative to appointing the AEC. The amendments also set out the requirements when appointing a PAB agent that is not the AEC. These amendments would require the FWC to regularly review and consider whether it remains satisfied that the eligible PAB agent or agents meet the requirements at least every three years Item 561: Section 12 842. This item would amend section 12 of the FW Act by inserting a new signpost definition of 'eligible PAB agent'. This new definition is particularly relevant to determining who is an eligible PAB agent for the purposes of Division 8 of Part 3-3 of the FW Act. The signpost definition is required due to the creation of a panel of PAB agents proposed by Item IA16. Item 562: Section 12 (definition of protected action ballot agent) 843. This item would insert 'or entity' in the definition of PAB agent to allow for the AEC to be a PAB agent. Item 563: At the end of subsection 437(3) 844. Section 437 of the FW Act enables an employee bargaining representative who will be covered by a proposed enterprise agreement to apply to the FWC for a PABO. Fair Work Legislation 152 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action 845. This item would insert a new paragraph into the FW Act requiring an applicant to specify the name of the person or entity that the applicant wishes to be the PAB agent for the PAB. This item also inserts a note at the end of subsection 437(3), alerting readers to the requirement that a PAB agent must be an eligible PAB agent unless there are exceptional circumstances (which require decision of the FWC). The note refers readers to section 444. Item 564: Subsection 437(4) 846. This item would repeal subsection 437(4), which requires an applicant to specify the name of the person they wish to be the PAB agent if they do not wish the AEC to be the PAB agent. This subsection would be unnecessary as new paragraph 437(3)(c) covers the requirement. Item 565: Section 440 847. This item would repeal and substitute a new section 440 to provide that within 24 hours after making an application for a PABO the applicant must give a copy of the application to the employer of the employees who are to be balloted and the AEC or the person that the applicant wishes to be the PAB agent. The existing provision distinguishes between applications specifying a person that the applicant wishes to be the PAB agent and the AEC. This amendment is necessary as the AEC would no longer be the default PAB agent. Item 566: At the end of subsection 443(3) 848. Section 443 specifies when the FWC must make a PABO. 849. This item would insert new paragraphs 443(3)(e) and (f) relating to the additional requirements that the FWC need to specify in the PABO, which is the person or entity to be the PAB agent and the independent advisor (if any) for the ballot. These amendments are a consequence of the AEC no longer being the default PAB agent. The amendment inserts the substance of subsection 443(4) and the effect of item 567 which repeals subsection 443(4). Item 567: Subsection 443(4) 850. This item would repeal subsection 443(4). Subsection 443(4) provides that if the FWC decides that a person other than the AEC is to be the PAB agent, the PABO must specify the person who is to be the PAB agent and the independent advisor (if any). This subsection would be unnecessary as the requirements are covered by new paragraphs 443(3)(e) and (f) inserted by item 566. Item 568: Section 444 (heading) 851. This item would substitute a new heading for section 444 to reflect that the AEC would no longer be the default PAB agent. House of Representatives 153 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action Item 569: Subsection 444(1) 852. This item would substitute subsection 444(1) with new subsections 444(1), 444(1A), 444(1B), 444(1C) and 444(1D). 853. New subsection 444(1) would provide that section 444 applies if the FWC must make a PABO under subsection 443(1). 854. New subsection 444(1A) would require the FWC to decide the PAB agent for the PAB. 855. New subsection 444(1B) would require the FWC to decide the PAB agent for the PAB is the person or entity specified in the application unless they do not meet the requirements outlined in subsection (1C) (unless subsection (1D) applies) or the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the PAB agent. 856. New subsection 444(1C) would require the person or entity to be an eligible PAB agent. 857. New subsection 444(1D), would provide the FWC with discretion to determine that there are exceptional circumstances justifying the ballot not being conducted by an eligible PAB agent. The FWC would need to be satisfied that the person nominated is a fit and proper person to conduct the ballot and that person meets any other requirements prescribed by the FW Regulations. 858. The note in subsection 444(1D) would clarify that an entity that is not a person cannot be the PAB agent for the PAB, unless that entity is the AEC. Item 570: Paragraph 444(2)(a) 859. This item would insert the words 'for the purposes of paragraph (1D)(b)' to link the regulation-making power to new paragraph 444(1D)(b) inserted by item 569 to reflect the amendments proposed in item 569. Item 571: Paragraph 444(2)(b) 860. Item 570 would, similarly to 570 link the regulation-making power to prescribe the factors that the FWC must take into account in determining if a person is a fit and proper person to reflect the amendments proposed in item 569. Item 572: Section 449 (heading) Item 573: Subsection 449(1) 861. These items would substitute a new heading for section 449 and repeal and substitute a new subsection 449(1). These amendments would be necessary as the AEC would no longer be the default PAB agent and the bargaining representative must nominate a PAB agent when applying for a PABO. Item 574: After section 468 862. This item would insert new section 468A. Fair Work Legislation 154 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action 863. New subsection 468A(1) would define the AEC and a person approved by the FWC under new subsection 468A(2) as an 'eligible PAB agent' who can conduct PABs. 864. New subsection 468A(2) provides that before a person is approved by the FWC, in writing, the FWC must be satisfied that the person is a fit and proper person to be a PAB agent and meet any other requirements prescribed by the FW Regulations. The concept of being a fit and proper person to conduct a PAB and meeting any other requirements prescribed by the FW Regulations is set out in subsection 444(1). This subsection would be repealed by item 569. 865. New subsection 468A(3) provides that the FW Regulations may prescribe conditions that a person must meet to satisfy the FWC that the person is a fit and proper person to be an eligible PAB agent (paragraph 468A(3)(a)), and the factors that the FWC must take into account to determine whether a person is a fit and proper person to be an eligible PAB agent (paragraph 468A(3)(b)). These new paragraphs would replicate subsection 444(2) which has been maintained for a person who is not an eligible PAB agent to conduct a PAB in exceptional circumstances. 866. New subsection 468A(4) would require the FWC to consider whether it remains satisfied that an eligible PAB agent meets the requirements of new subsection 468A(2) at least every three years after the agent's approval. 867. New subsection 468A(5) would empower the FWC to take action as prescribed by the FW Regulations and any other action the FWC considers appropriate if the FWC is no longer satisfied that an eligible PAB agent meets the requirements set out in new subsection 468A(2). If a person, in particular an eligible PAB agent, is aggrieved by the FWC's decision made under section 468A, the person may appeal the decision, with the FWC's permission, under section 604 of the FW Act. If the person is aggrieved by the FWC's decision, that person may consider whether to apply to the Federal Court jurisdiction for a judicial review. Item 575: Paragraph 469(a) 868. This item would repeal paragraph 469(a). This paragraph would be redundant as similar provisions exist at subsection 444(3) and new subsections 468A(2) and (3). Item 576: At the end of section 539 869. This item would amend section 539 to include a new subsection 539(5). This new subsection would provide that the AEC is treated as a person for the purposes of seeking orders for contraventions of civil penalty provisions set out in subsections 462(1) and (3), 463(1) and (2), and 467(1). House of Representatives 155 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action Division 3--Supported bargaining Amendments to the Fair Work Act 2009 870. Amendments to the FW Act proposed in other Parts would amend existing provisions to provide for a scheme of supported bargaining involving multiple enterprises. Division 3 would amend the FW Act to provide that protected industrial action is available to parties involved in supported bargaining. 871. These amendments would commence immediately after the commencement of the provisions in Division 1. Item 577: Subsection 413(2) 872. This item would repeal and substitute subsection 413(2). The new subsection 413(2) would provide that industrial action is not available if a proposed enterprise agreement is a greenfields agreement or a cooperative workplace agreement. The amendment repeals the reference to a multi-enterprise agreement to allow protected industrial action to take place for supported bargaining. Item 578: Paragraph 437(2)(b) 873. This item would repeal and substitute paragraph 437(2)(b). New paragraph 437(2)(b) would provide that a bargaining representative of an employee is unable to apply to the FWC for a PABO if a proposed enterprise agreement is a cooperative workplace agreement. The amendment repeals the reference to a multi-enterprise agreement to enable bargaining representatives in multi-enterprise supported bargaining to be able to apply for a PABO. Division 4--Notice requirements for industrial action Amendments to the Fair Work Act 2009 874. Division 4 would amend the FW Act to provide 120 hours as the default notice period before protected industrial action may commence if the proposed enterprise agreement is a single interest employer agreement or a supported bargaining agreement. Single interest bargaining and supported bargaining involve multiple enterprises. Item 579: Paragraph 414(2)(a) 875. This item would repeal and substitute paragraph 414(2)(a). New paragraph 414(2)(a) would provide a three working day notice period for single enterprise bargaining and a notice period of 120 hours for single interest employer bargaining and supported bargaining. The objective of the 120 hours' notice period is to provide employers adequate time to respond and put in place contingencies ahead of the planned industrial action. Fair Work Legislation 156 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action Item 580: Subsection 443(5) 876. This item would insert 'or 120 hours (whichever is applicable)' and is consequential on the amendment to paragraph 414(2)(a). This amendment would provide the AEC with the capacity to order a maximum notice period of 7 days across single interest bargaining, supported bargaining and single enterprise bargaining. Division 5--Mediation and conciliation Amendments to the Fair Work Act 2009 877. Division 5 of the Bill would amend the FW Act to mandate the attendance of bargaining representatives at a conciliation conference conducted by the FWC during the PAB period. The conference can be held no later than the day on which voting closes on the PAB. Item 581: After subsection 409(6) 878. This item would insert a new subsection 409(6A) into section 409 which defines 'employee claim action'. Industrial action which is an employee claim action would not protected unless the requirements of section 409 are met. 879. New subsection 409(6A) would be an additional requirement of section 409. This new subsection would have the effect that if a bargaining representative of an employee has contravened an order under section 448A (which is about mediation and conciliation conferences) that applies to the bargaining representative and relates to the PABO, any subsequent industrial action would not be protected. Item 582: subsection 411(2) 880. This item would amend new subsection 411(2) to provide that subsections 411(3) and (4) would apply in relation to employer action. Item 583: At the end of section 411 881. This item would insert new subsection 411(4) to provide that the employer and the employer's bargaining representative must not have contravened an order under new section 448A (which is about mediation and conciliation conference) that applies to the employer or bargaining representative and relates to the PABO. If the employer contravened an order under section 448A, protected industrial action would not be available to the employer. Item 584: Subsection 443(3A) 882. This item would repeal and substitute subsection 443(3A). New subsection 443(3A) would provide that the FWC must specify a date that will enable the PAB to be conducted as expeditiously as practicable but allow for a minimum of 14 days when specifying the date by which voting in the PAB closes. The minimum 14 day ballot House of Representatives 157 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 19 - Industrial action period is to enable a conciliation conference to be held during this period between the bargaining representatives under new section 448A. Item 585: After Subdivision B of Division 8 of Part 3-3 883. This item would insert a heading for a new Subdivision BA entitled 'Subdivision BA-- FWC must conduct conferences'. 884. New subsection 448A(1) would require the FWC to make an order requiring the attendance of bargaining representatives at a conference where a PABO has been made in relation to a proposed enterprise agreement. The FWC has discretion to determine the timing and place of the conference, and the means by which it will occur. 885. New subsection 448A(2) would provide that the conference must end on or before the day that voting in the PAB closes. 886. New subsection 448A(3) would provide that an FWC member (other than an Expert Panel member), or a delegate of the FWC is responsible for conducting a conference. Bargaining representatives remain subject to the good faith bargaining requirements outlined in section 228. 887. New subsection 448A(4) would provide those conferences must be held in private. This complements existing subsection 592(3), which provides that conferences must be conducted in private unless the person responsible for its conduct directs that it be conducted in public. 888. New subsection 448A(5) would provide that the FWC has discretion at a conference whether to mediate or conciliate (paragraph 448A(5)(a)) or make a recommendation or express an opinion (paragraph 448A(5(b)). 889. New subsection 448A(6) would clarify that the new provision does not limit the FWC's power under section 592 (which deals with conferences) or section 595 (which deals with FWC's power to deal with disputes). Fair Work Legislation 158 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining PART 20--SUPPORTED BARGAINING Overview 890. Part 20 would reform the low-paid bargaining provisions in Division 9 of Part 2-4 of the FW Act and create the supported bargaining stream. The proposed supported bargaining stream is intended to assist those employees and employers who may have difficulty bargaining at the single-enterprise level. For example, those in low paid industries such as aged care, disability care, and early childhood education and care who may lack the necessary skills, resources and power to bargain effectively. The supported bargaining stream will also assist employees and employers who may face barriers to bargaining, such as employees with a disability and First Nations employees. 891. The supported bargaining process would operate similarly to the existing low-paid bargaining process. When an application for a supported bargaining authorisation is made, the FWC must consider whether it is appropriate for the parties to bargain together. The FWC would consider the prevailing pay and conditions in the relevant industry, whether employers have clearly identifiable common interests, and whether the number of bargaining representatives would be consistent with a manageable collective bargaining process. The supported bargaining stream is intended to be easier to access than the existing low-paid bargaining stream. The revised criteria for making a supported bargaining authorisation is intended to address the limited take-up of the low-paid bargaining process. 892. If a supported bargaining authorisation is in operation in relation to a proposed multi- enterprise agreement, the FWC has additional powers to assist the parties in coming to an agreement. This includes convening conferences with a third party who has control over the terms and conditions that can be offered under an agreement. 893. Once an employer is specified in a supported bargaining authorisation, they cannot bargain for any other agreement in relation to those employees. An employer can apply to the FWC to be added to a supported bargaining authorisation, or removed if their circumstances have changed. 894. When a supported bargaining agreement is made and approved by the FWC, the agreement may then be varied to cover additional employers and their employees. A variation may be made jointly by the employers and their employees and approved by the FWC. Alternatively, an employee organisation may apply to the FWC for variation of a supported bargaining agreement to cover additional employers and their employees, if a majority of those employees want to be covered by the agreement. 895. To make a supported bargaining agreement the employees of each employer to be covered must vote as a separate cohort. If a majority of employees of one employer do not 'vote up' the agreement (i.e. a majority of those who cast a valid vote do not vote to approve the agreement), then that employer will not be covered by the agreement (see section 182(2) and 184 of the FW Act). House of Representatives 159 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining 896. These amendments would deliver on the Jobs and Skills Summit outcome of ensuring workers and businesses have flexible options for reaching agreements, including removing unnecessary limitations on access to single and multi-employer agreements. Amendments to the Fair Work Act 2009 Item 586: Section 12 Item 587: Section 12 Item 588: Section 12 (paragraph (a) of the definition of workplace determination) 897. These items would repeal references to the low-paid bargaining stream. 898. This Part would repeal low-paid workplace determinations. Instead, a bargaining representative for a proposed supported bargaining agreement would be able to apply for a new intractable bargaining declaration, and subject to satisfying the relevant criteria, obtain an intractable bargaining workplace determination. 899. Item 587 would insert a new definition of 'supported bargaining agreement' and 'supported bargaining authorisation'. A supported bargaining agreement is defined as a multi-enterprise agreement in relation to which a supported bargaining authorisation was in operation immediately before the agreement was made. A supported bargaining authorisation is defined by reference to subsection 242(1). Item 589: Paragraph 58(2)(c) Item 590: Subsection 58(3) 900. Item 589 is consequential upon the insertion of new subsection 58(3). 901. Item 590 would repeal subsection 58(3), which currently provides that a single- enterprise agreement can replace a multi-enterprise agreement at any time, irrespective of whether the single-enterprise agreement has passed its nominal expiry date. 902. New subsection 58(3) would provide when a supported bargaining agreement comes into operation in relation to an employee, any single-enterprise agreement would cease to apply to that employee, regardless of the nominal expiry date of the single-enterprise agreement. 903. The interaction rule in new subsection 58(3) would have very limited application and only relates to the anti-avoidance mechanism in new subsection 243A(3). New subsection 243A(1) would provide that ordinarily the FWC must not make a supported bargaining authorisation specifying an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date. However, new subsection 243(A)(3) provides that a supported bargaining authorisation can specify an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date if the FWC is satisfied that the employer's main intention in making the agreement Fair Work Legislation 160 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining was to avoid being specified in the authorisation. New subsection 58(3) would operate to give effect to that rule. 904. New subsection 58(3) is an exception to the general interaction rule in subsection 58(2), which provides that a later agreement cannot displace an earlier agreement until the earlier agreement has passed its nominal expiry date. Item 591: Section 169 (paragraph beginning "Division 9") 905. This item would omit a reference to 'low-paid' and substitute 'supported bargaining' to reflect the replacement of the low-paid bargaining stream. Item 592: At the end of section 172 906. This item would insert new subsection 172(7) which provides that if an employer is specified in a supported bargaining authorisation that is in operation, the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement. Further, the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of agreement. 907. If an employer wishes to bargain for a different kind of agreement, they may apply to the FWC to be removed from the supported bargaining authorisation under section 244. This would require that the FWC is satisfied that, because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation. Item 593: Paragraph 173(2)(d) Item 594: Subparagraph 176(1)(b)(ii) Item 595: Subsection 176(2) (heading) Item 596: Paragraph 176(2)(a) 908. These items would make technical amendments to replace references to 'low-paid' with 'supported bargaining'. Item 597: In the appropriate position in Division 7 of Part 2-4 909. This item would insert new Subdivision AA and Subdivision AB into Division 7 of Part 2-4 of the FW Act. 910. Subdivision AA would provide for how a supported bargaining agreement can be varied to add an employer and their employees by consent. 911. Subdivision AB would establish how a supported bargaining agreement can be varied to add an employer and their employees, without the consent of the parties. House of Representatives 161 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining Subdivision AA - Variation of supported bargaining agreement to add employer and employees (with consent) Section 216A Variation of supported bargaining agreement to add employer and employees (with consent) 912. New section 216A would set out how a variation of a supported bargaining agreement to add an employer and their employees may be jointly made by an employer and their employees. An employer may request that the 'affected employees', being employees who would be covered by the agreement if the variation is made, approve the variation by voting for it. The variation is made when a majority of the affected employees who cast a valid vote approve the variation. 913. Subsection 216A(3) states that an employer can request that the employees vote by a ballot or by electronic means. These methods of voting are not exhaustive but the voting method needs to demonstrate the employees' genuine agreement. 914. The employer would be required to apply to the FWC under section 216AA and the FWC must approve the variation under section 216AB before the variation can have any effect. Section 216AA Application for the FWC's approval of a variation of a supported bargaining agreement to add employer and employees 915. New section 216AA would require the employer who is seeking to join the agreement to apply to the FWC for approval of the variation. Certain requirements apply to how and when the application must be made. Section 216AB When the FWC must approve a variation of a supported bargaining agreement to add employer and employees 916. New section 216AB would establish when the FWC must approve a variation of a supported bargaining agreement to add a new employer and employees with consent. The FWC must be satisfied of the following three criteria: • that if the application that was made for the supported bargaining authorisation in relation to the agreement had specified the employer and the affected employees, the FWC would have been required to make the authorisation, in accordance with new section 216AC; • the affected employees have voted and a majority of those who cast a valid vote approved the variation; and • the variation has been genuinely agreed to by the affected employees, in accordance with new section 216AD. 917. The FWC does not have to approve the variation if there are serious public interest grounds for not approving the variation. This is consistent with the variation process for Fair Work Legislation 162 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining enterprise agreements in existing section 211. The public interest would be likely to favour the making of variations that inhibit a 'race to the bottom' on wages and conditions, while discouraging the making of variations that could adversely affect competition on the basis of factors such as quality (including service levels) and innovation. The views of the employers and employee bargaining representatives could be relevant to the FWC's consideration of the public interest, including whether they support the variation being made. 918. New subsection 216AB(2) would prohibit the FWC from approving a variation if the employer is an excluded person under new section 178C. New section 178C would permit the FWC to make an order excluding a person from being a bargaining representative for a proposed agreement due to the person having a record of not complying with the FW Act in relevant respects. Section 216AC Determining whether the FWC would have been required to make a supported bargaining authorisation 919. New section 216AC would include modifications to sections 243 and 243A in relation to making a supported bargaining authorisation, to ensure those provisions can be applied in the context of new section 216AB. These modifications are required because, for example, a variation does not involve bargaining representatives and so the FWC cannot consider whether the number of bargaining representatives is manageable. Section 216AD Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees 920. New section 216AD would require the FWC to be satisfied of the same genuine agreement requirement that applies when an enterprise agreement is approved, as set out in existing section 188 of the FW Act. The operation of section 188 would be modified by this section to address the fact that the FWC would be considering a variation, and not the making of an agreement. 921. For example, the FWC would be required to consider references in section 188 to employees as being references to the affected employees for the variation. 922. A further example is that in taking into account the statement of principles made under section 188B, the FWC may disregard matters concerning informing employees of bargaining and of their right to be represented by a bargaining representative because the making of a variation does not strictly involve bargaining under the FW Act. 923. New subsection 216AD(3) would specify that regulations may provide that, for the purposes of the FWC deciding whether it is satisfied that the variation has been genuinely agreed to , specified provisions of the Part or regulations made for the purposes of the Part have effect with such modification as are prescribed by the regulations. This would ensure that there is sufficient flexibility to modify the regime in ways that are necessary or desirable to ensure it is operating as intended. House of Representatives 163 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining Section 216AE When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees 924. New section 216AE would provide that if an application for the approval of a variation of a supported bargaining agreement is made under section 216AA, the FWC may refuse to approve the variation if it considers that complying with the terms of the agreement, as proposed to be varied, would result in a person committing an offence against a law of the Commonwealth or being liable to pay a pecuniary penalty in relation to a contravention of such a law. This largely mirrors the provisions in existing section 214. Section 216AF When variation comes into operation 925. This section would provide that a variation to a supported bargaining agreement made by the FWC would operate from the day specified in the decision to approve the variation. Subdivision AB - Variation of supported bargaining agreement to add employer and employees (without consent) Section 216B Application for the FWC to vary a supported bargaining agreement to add employer and employees 926. New section 216B would provide that an employee organisation that is covered by a supported bargaining agreement may apply to the FWC for a variation of a supported bargaining agreement to cover a new employer and their employees. 927. This section would also establish procedural requirements for an application in new subsection 216B(2) that largely mirror the requirements in existing section 210(2). Section 216BA When the FWC must make a variation of a supported bargaining agreement to add employer and employees 928. New section 216BA would set out when the FWC must vary a supported bargaining agreement to add an employer without the employer's consent. The FWC would need to be satisfied that the majority of the employer's employees who would become covered by the supported bargaining agreement want to be covered by it and that it is appropriate for those employees to be covered. It is intended that the FWC could work out whether a majority of employees want to be covered by the agreement using any method it considers appropriate. This could include, for example, relying on a ballot or petition of a representative sample of the employer's employees. 929. In determining whether it is appropriate for the employees to be covered by the agreement, the FWC must take into account the views of each employee organisation covered by the agreement and the employer who will be covered by the agreement if the variation is made. The FWC may have regard to the matters in new section 243. New section 243 sets out when the FWC must make a supported bargaining Fair Work Legislation 164 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining authorisation, including whether the employers have clearly identifiable common interests, etc. 930. New subsection 216BA(3) would provide that the FWC would not be able to make the variation if the employee organisation that applied for the variation is excluded under new section 178C or if the employees who the variation would extend the agreement to cover are already covered by another an enterprise agreement (of any kind) that has not passed its nominal expiry date. New section 178C permits the FWC to make an order excluding a person from certain special rights due to the person having a relevant record of not complying with the FW Act. Section 216BB When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees 931. This new section would allow the FWC to refuse to approve the variation of a supported bargaining agreement in certain circumstances. These circumstances mirror the criteria for refusing to approve a variation by consent (new section 216AE) and would be applied by the FWC in the same way. They are modelled on existing section 214. Section 216BC When variation comes into operation 932. This new section would provide that a variation of a supported bargaining agreement made under section 216BA operates from the day specified in the decision to make the variation. The new section largely mirrors existing section 216. Item 598: Subsection 229(2) Item 599: Paragraph 230(2)(d) 933. These items would make technical amendments to replace the words 'low-paid' with 'supported bargaining'. Item 600: After subsection 236(1) 934. This item would amend section 236 to insert a new subsection 236(1A) which would provide that a bargaining representative may not apply to the FWC for a majority support determination if a supported bargaining authorisation that specifies the employee is in operation. It is intended that an employer cannot bargain for an enterprise agreement while they are named in a supported bargaining authorisation. If they wish to bargain for a different kind of enterprise agreement, the employer would need to apply to the FWC to have their name removed from the authorisation under section 244. House of Representatives 165 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining Item 601: Paragraph 240(2)(b) Item 602: Division 9 of Part 2-4 (heading) 935. These items would make technical amendments to reflect the change from the low-paid bargaining scheme to the supported bargaining scheme. Item 603: Paragraph 241(a) Item 604: Paragraph 241(b) Item 605: Paragraphs 241(c) and (d) Item 606: Section 241 (note) 936. These items would update the objects of Division 9 of Part 2-4 to reflect the change from the low-paid bargaining scheme to the supported bargaining scheme. 937. Item 603 would remove the references to 'low-paid' employees in the objects of Division 9. This amendment would expand the objects of the supported bargaining stream to encompass employees and their employers who require support to bargain. 938. The supported bargaining stream is intended to assist those employees and employers who may have difficulty bargaining at the single-enterprise level. For example, those in low paid industries such as aged care, disability care, and early childhood education and care who may lack the necessary skills, resources and power to bargain effectively. The supported bargaining stream will also assist employees and employers who may face barriers to bargaining, such as employees with a disability and First Nations employees. Item 607: Section 242 (heading) Item 608: Subsection 242(1) Item 609: Subsection 242(1) (note) 939. These items would make technical amendments to replace the words 'low paid' with 'supported bargaining'. 940. Subsection 242(1), as amended, would provide that the persons who may apply to the FWC for a supported bargaining authorisation are a bargaining representative for the agreement or an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement. Item 610: After subsection 242(1) 941. This item would provide new subsection 242(1A) that would prevent an employee organisation applying for a supported bargaining authorisation if it is excluded for the purposes of the agreement by an order made under new section 178C. Item 611: Section 243 Fair Work Legislation 166 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining 942. This item would insert new sections 243 and 243A. Section 243 would provide the criteria which the FWC must consider in determining whether to make a supported bargaining authorisation. Section 243A would set out the employers and employees who must not be specified in a supported bargaining authorisation. These provisions are intended to improve access to the supported bargaining stream beyond the scope of the existing low-paid bargaining stream. Section 243 When the FWC must make a supported bargaining authorisation 943. Section 243 would require the FWC to make a supported bargaining authorisation if: an application has been made, the FWC is satisfied that it is appropriate for the employers and employees to bargain together, and that at least some of the employees will be covered by an employee organisation. The FWC would not be required to make the authorisation in relation to all of the employers and employees specified in the application but would be able to specify just that subset of employers and employees that meet the criteria. In determining whether it is appropriate for the employers and employees to bargain together, it will be relevant for the Fair Work Commission to consider whether any employee organisation or employer supports this course of action. For example, if an employee organisation did not support an authorisation being made, its reasons for not supporting the authorisation would be a relevant factor to consider. 944. When considering whether it is appropriate for the employer and employees to bargain together, the FWC would have regard to: • the prevailing pay and conditions in the relevant industry - this is intended to include whether low rates of pay prevail in the industry, whether employees in the industry are paid at or close to relevant award rates, etc; • whether the employers have clearly identifiable common interests (explained in subsection 243(2)); • whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process (for example, employers may need to form bargaining units; this consideration is not intended to allow employers to try to opt out by encouraging employees to appoint individual bargaining representatives); and • any other matters the FWC considers appropriate - this may include considering the views of the bargaining representatives. 945. Subsection 243(2) would provide examples of common interests that employers may have. This includes the geographical location of the employers, the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises, and whether the employers are substantially funded (directly or indirectly) by the Commonwealth, or a State or Territory. House of Representatives 167 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining 946. Subsection 243(3) would provide that a supported bargaining authorisation must specify the employers and employees who will be covered by the agreement and any other maters prescribed by the procedural rules. 947. Subsection 243(4) would provide that an authorisation comes into operation on the day on which it is made. Section 243A Employers and employees who must not be specified in a supported bargaining authorisation 948. New subsection 243A(1) would provide that the a supported bargaining authorisation cannot specify an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date. 949. However, new subsection 243A(3) would provide that this rule does not apply if the FWC is satisfied that the employer's main intention in making the single-enterprise agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation. 950. New subsection 243A(2) would provide that a supported bargaining authorisation has no effect to the extent that it specifies an employee who is covered by a single- enterprise agreement that has not passed its nominal expiry date. 951. New subsections 243A(4) and 243A(5) would provide that the FWC must not make a supported bargaining authorisation specifying an employer who is excluded under new section 178C and must vary an authorisation to remove any such employer. New section 178C permits the FWC to make an order excluding a person from being a bargaining representative for a proposed agreement due to the person having a relevant record of not complying with the FW Act. Item 612: Section 244 (heading) Item 613: Subsections 244(1) and (3) 952. These items would make technical amendments to replace the words 'low-paid' with 'supported bargaining'. 953. Following these amendments, subsections 244(1) and (2) would provide that if an employer applies to have its name removed from a supported bargaining authorisation, the FWC must do so if satisfied that a change in the employer's circumstances is significant enough to mean that it is no longer appropriate for the employer to be specified in the authorisation. Item 614: Subsection 244(4) 954. This item would amend section 244 in relation to the process for varying a supported bargaining authorisation to add a new employer. New subsection 244(4) would provide Fair Work Legislation 168 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining that an excluded person cannot apply for a variation of a supported bargaining authorisation. 955. New subsection 244(5) would provide that, on application, the FWC must vary an authorisation to add an employer if it is satisfied that it is in the public interest to do so, taking into account: • whether it would be appropriate for the parties to bargain together, as set out in the new paragraph 243(1)(b) - this includes having regard to the prevailing pay and conditions in the relevant industry, whether the employers have clearly identifiable common interests, whether the number of bargaining representatives would be manageable, and any other matter the FWC considers appropriate; • whether the FWC is prohibited from making an authorisation specifying the employer under new section 243A - this includes employees who are covered by a single-enterprise agreement that has not passed its nominal expiry date and employers who are excluded by an order under section 178C; and • any other matters the FWC considers appropriate. 956. The public interest would be likely to favour the making of a variation to a supported bargaining agreement where that would inhibit a 'race to the bottom' on wages and conditions, while discouraging the making of variations that could adversely affect competition on the basis of factors such as quality (including service levels) and innovation. The views of the employers and employee bargaining representatives could be relevant to the FWC's consideration of the public interest, including whether they support the variation being made. Item 615: Section 245 (heading) Item 616: Section 245 957. These items would make technical amendments to replace the words 'low-paid' with 'supported bargaining'. Item 617: After section 245 958. This item would insert section 245A, which would require the FWC to revoke a supported bargaining authorisation if the effect of one or more orders under section 178C is that none of the employees covered by the proposed supported bargaining agreement are represented by an employee organisation. New section 178C permits the FWC to make an order excluding a person from being a bargaining representative for a proposed agreement due to the person having a record of not complying with the FW Act. 959. A condition of a supported bargaining authorisation being granted is that at least some of the relevant employees are represented by an employee organisation (see new paragraph 243(1)(c)). House of Representatives 169 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 20 - Supported bargaining Item 618: Section 246 (heading) Item 619: Subsection 246(1) 960. These items would make technical amendments to remove the words 'low-paid' and replace them with appropriate references to supported bargaining and FWC's assistance. Item 620: Section 258 (paragraph beginning with "Division 2") Item 621: Division 2 of Part 2-5 Item 622: Subsection 274(1) Item 623: Paragraphs 275(b) Item 624: Paragraph 275(c) 961. These items would make technical amendments to remove references to low-paid workplace determinations. Instead, a bargaining representative for a proposed supported bargaining agreement would be able to apply for a new intractable bargaining declaration, and subject to satisfying the relevant criteria, obtain an intractable bargaining workplace determination. Item 625: Subsection 413(2) Item 626: Paragraph 437(2)(b) 962. These items would substitute 'multi-enterprise agreement' with 'a cooperative workplace agreement' to reflect that protected industrial action would be enabled in relation to multi-enterprise agreements that are supported bargaining agreements but not cooperative workplace agreements. Fair Work Legislation 170 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations PART 21--SINGLE INTEREST EMPLOYER AUTHORISATIONS Overview 963. Existing division 10 of Part 2-4 of the FW Act provides for two or more employers that will be covered by a proposed enterprise agreement to apply for a single interest employer authorisation. A single interest employer authorisation permits certain employers to bargain together for a single-enterprise agreement (see section 172). 964. Employers who may apply under existing Division 10 of Part 2-4 for a single interest employer authorisation are franchisees, and employees who have obtained a Ministerial declaration based on meeting specified criteria regarding their common interests. Employers with common interests may include schools in a common education system or public entities providing health services. 965. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by: • removing the requirement for two or more employers with common interests who are not franchisees or otherwise single interest employers within the meaning of existing paragraphs 172(5)(a) and (b) to obtain a Ministerial declaration before applying a single interest employer authorisation; • providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees; • permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and • inserting new Subdivision AD--Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements. Amendments to the Fair Work Act 2009 Item 627: Section 12 966. Section 12 of the FW Act contains the Dictionary. This item would insert a new definition of 'single interest employer agreement' into section 12. The new definition would provide that an enterprise agreement is a single interest employer agreement if a House of Representatives 171 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations single interest employer authorisation was in operation in relation to the agreement immediately before the agreement was made. Item 628: At the end of subsection 173(2) 967. This item would insert a new paragraph (e) to provide that there is a notification time in relation to a proposed enterprise agreement when a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation. 968. This amendment would be necessary because not all employers that are specified in a single interest employer authorisation will have agreed to bargain or will have initiated bargaining within the meaning of existing paragraph 173(2)(a). 969. Although the employer would not, following the reforms that would be made by this Bill, be obliged to provide employees with a NERR, the notification time is significant for other purposes in the FW Act, including applications for PAB orders under existing section 437 of the FW Act. Item 629: In the appropriate position in Division 7 of Part 2-4 970. This item would insert new Subdivision AD--Variation of single interest employer agreement to add employer and employees into Division 7 of Part 2-4 of the FW Act. Division 7 of Part 2-4 of the FW Act is about the variation and termination of enterprise agreements. 971. New Subdivision AD would provide for a new type of variation of an existing single interest employer agreement that would result in a new employer and its employees being covered by the agreement. 972. Such a variation would be able to be made jointly by the new employer and its employees (see new section 216D) or on application by an employee organisation that is covered by the single interest employer agreement (see new section 216DB). Both types of variations would require the approval of the FWC before taking effect (see new sections 216DA to 216DD and 216DF). 973. Once the variation takes effect, the single interest employer agreement would apply to the new employer and employees as though they had always been covered by the agreement. The only change that may be made to an agreement under new Subdivision AD is the change to coverage. The terms and the nominal expiry date of the agreement would remain unchanged. 974. New Subdivision AD would contribute to making the single interest employer authorisation bargaining stream more accessible, especially for small and medium businesses and for employees that have not previously had access to effective collective bargaining. Fair Work Legislation 172 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations Section 216D--Variation of single interest employer agreement to add employer and employees--joint variation 975. New subsection 216D(1) would permit an employer that is not covered by a single interest employer agreement to make a variation with those of its employees who are employed at the time of making the variation who will be covered by the agreement when the variation is approved by the FWC (the affected employees). The effect of such a variation would be that the employer and the affected employees will be covered by that agreement. 976. New subsection 216D(2) would make clear that any variation to extend coverage of an existing single interest employer agreement to a new employer and the affected employees would be of no effect unless it is approved by the FWC under new section 216DC. 977. New subsection 216D(3) would provide that the employer may request the affected employees to approve the proposed variation by voting for it. 978. New subsection 216D(4) would provide that, without limiting subsection 216D(3), the employer may request that the affected employees vote by ballot or by an electronic method. 979. New subsection 216D(5) would make clear that a variation under section 216D (variation of single interest employer agreement to add employer and employees-joint variation) is made when a majority of the affected employees who cast a valid vote approve the variation. Section 216DA--Application for the FWC's approval of a variation of a single interest employer agreement to add employer and employees--joint variation 980. New subsection 216DA(1) would provide that, if a single interest employer agreement is varied under new section 216D, the new employer to which coverage of the single interest employer agreement has been extended must apply to the FWC for approval of the variation. 981. New subsection 216DA(2) would provide that the application by the employer for approval of the variation must be accompanied by a signed copy of the variation, a copy of the agreement as proposed to be varied, and any declarations required by the FWC's procedural rules. 982. The application for approval of the variation must be made within 14 days after the variation is made; or within such further period as may be allowed by the FWC if, in all the circumstances, the FWC considers it fair to extend the 14 day period (new subsection 216DA(3)). 983. New subsection 216DA(4) would provide that the regulations may prescribe requirements for the signing of variations of single interest employer agreements made under new section 216D. House of Representatives 173 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations Section 216DB--Application for the FWC's approval of a variation of a single interest employer agreement to add employer and employees--application by employee organisation 984. New subsection 216DB(1) would permit an employee organisation that is covered by an existing single interest employer agreement to apply to the FWC for approval of a variation of that agreement. Such a variation would have the effect of extending the coverage of the single interest employer agreement to a new employer and the affected employees. The affected employees are those employees of the new employer who are employed at the time and who would be covered by the agreement if the variation is approved by the FWC. 985. New subsection 216DB(2) would provide that the employee organisation's application must be accompanied by a signed copy of the variation, a copy of the agreement as proposed to be varied, and any declarations required by the procedural rules to accompany the application. It is not intended that an employer can refuse to sign the variation because they did not consent to the FWC making the variation and thereby defeat the making of the variation. 986. New subsection 216DB(3) would provide that the regulations may prescribe requirements for the signing of variations of single interest employer agreements for which approval is sought under new section 216DB. Section 216DC--When the FWC must approve a variation of a single interest employer agreement to add employer and employees 987. New section 216DC would set out the matters of which the FWC would be required to be satisfied before approving a variation of a single interest employer agreement to extend coverage to a new employer and its affected employees. Some matters apply only if the application for approval of the variation has been made by the new employer and some matters apply only if the application for approval has been made by an employee organisation that is covered by the single interest employer agreement. Other matters apply regardless of who made the application for approval. 988. New paragraphs 216DC(a) and (b) would address the first matter of which the FWC must be satisfied, namely that there is the requisite degree of commonality between the new employer and the employers covered by the agreement. This matter applies regardless of who makes the application for approval of the variation. 989. New paragraph 216DC(a) would provide that the FWC may be satisfied that there is the requisite degree of commonality if the employers already covered by the agreement and the new employer carry on similar business activities under the same franchise and: • all of those employers are franchisees of the same franchisor; • related bodies corporate of the same franchisor; or • any combination of the above. Fair Work Legislation 174 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations 990. In this way, Subdivision AD would provide a straightforward mechanism for a new franchise employer to be added to existing arrangements for the franchise. 991. If new paragraph 216DC(1)(a) does not apply, the FWC would be required to be satisfied that it is appropriate to approve the variation, having regard to whether the employers covered by the existing single interest employer agreement and the new employer have clearly identifiable common interests and whether it would not be contrary to the public interest to approve the variation. 992. New subsection 216DC(2) would provide examples of the types of matters that may be relevant to determining whether the employers have a common interest. Those examples include geographic location, regulatory regime as well as the nature of the enterprises to which the agreement will relate and the terms and conditions of employment in those enterprises. 993. The requirement for the FWC to consider whether it would not be contrary to the public interest to approve the variation would provide the FWC with an opportunity to consider all of the circumstances of the application for approval of the variation and whether the approval of the variation might adversely affect the public interest in some way. For example, the FWC could consider the broader economic ramifications of including the new employer in the single interest employer agreement. The public interest would be likely to favour the approval of variations that inhibit a 'race to the bottom' on wages and conditions while discouraging the approval of variations that could adversely affect competition on the basis of quality (including service levels) and innovation. 994. New paragraph 216DC(1)(c) would address the second matter of which the FWC must be satisfied in considering whether it must approve the variation for which application has been made. It applies to all applications for approval, regardless of who approved the application. The FWC would be required to be satisfied that the employers and any employee organisations covered by the existing single interest employer agreement have had an opportunity to express to the FWC their views, if any, on the application. 995. New paragraph 216DC(1)(d) would address a matter that the FWC would only be required to be satisfied of if the employer makes the application for approval (i.e. the application is a joint variation). The FWC would be required to be satisfied that the variation was genuinely agreed to by employees in accordance with new section 216DD. This requirement encompasses matters such as the quality of the vote of employees to make the variation for which the employer has sought approval. 996. New paragraph 216DC(1)(e) would address a number of matters of which the FWC would be required to be satisfied if an employee organisation covered by the single interest employer agreement makes the application for approval. 997. New subparagraph 216DC(1)(e)(i) would require the FWC to be satisfied that the employer that will be covered by the agreement is not a small business employer. House of Representatives 175 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations Small business employer is defined in existing section 23 of the FW Act. It would remain open to a small business employer to be added to a single interest employer agreement where it makes the application under new section 216DA. 998. New subparagraph 216DC(1)(e)(ii) would require the FWC to be satisfied that the affected employees are not covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation. This means that, where the new employer and the affected employees are already covered by another agreement that has not yet passed its nominal expiry date, it would not be open to an employee organisation to seek to extend the coverage of a single interest employer agreement to that employer and the affected employees. 999. New subparagraph 216DC(1)(e)(iii) would require the FWC to be satisfied that a majority of the employees (who are employed by the employer at a time determined by the FWC and who would be covered by the agreement) want to be covered by the agreement. New subsection 216DC(3) would provide that, for this purpose, the FWC may work out whether a majority of employees want to be covered by the agreement using any method that the FWC considers appropriate. This means that the FWC could, for example, be satisfied that a majority of the employees want to be covered by the agreement having regard to a petition of a representative sample of the employer's employees or the number of employees voting in support in a ballot of some of the employer's employees. 1000. New subsection 216DC(4) would prevent the FWC from approving the variation if the employer, or the employee organisation (that made the application under new section 216DB) is excluded for the purposes of the agreement by an order under new section 178C, which would be inserted by item 644 of Schedule 1. New section 178C would permit the FWC, in the circumstances described in that section, relevantly to make an order excluding a person who has a relevant record of repeatedly not complying with the FW Act from being added to a single interest employer agreement under Subdivision AD of Division 7 of Part 2-4 of the FW Act or from making an application to add an employer to a single interest employer agreement under that Subdivision. Section 216DD--Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees 1001. New section 216DD would ensure that the principles of genuine agreement in new section 188 apply to variations voted up by employees. 1002. New subsection 216DD(1) would provide that, for the purposes of new paragraph 216DC(1)(c) (genuine agreement to variation), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees by applying new section 188 (Determining whether an enterprise agreement Fair Work Legislation 176 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations has been genuinely agreed to by employees) inserted by item 509 of Schedule 1 to this Bill in a modified manner as follows: • as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to; • as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees; • as if, in paragraph 188(2)(a) (employees must have a sufficient interest in the terms of the agreement), the reference to the agreement were a reference to the agreement as proposed to be varied; and • as if subsections 188(3), (4) and (5) are omitted. These subsections deal with requirements for certain agreements: to issue a NERR (subsection 188(3)), not to request employees vote to approve an agreement until 21 days after the last NERR is given (subsection 188(4)); and disregard of minor procedural or technical errors (subsection 188(5)). 1003. This means that, when determining whether to approve the variation, the FWC must take into account the statement of principles made under new section 188B (new subsection 188(1)) when determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees, and be satisfied that the affected employees have a sufficient interest in the terms of the agreement as proposed to be varied (new paragraph 188(2)(a)); and are sufficiently representative, having regard to the employees the agreement is expressed to cover (new paragraph 188(2)(b)). 1004. New subsection 216DD(2) would provide that, in taking into account the statement of principles made under new section 188B: • the FWC may disregard the matters in new paragraphs 188B(3)(a) (informing employees of bargaining for a proposed enterprise agreement) and (b) (informing employees of their right to be represented by a bargaining representative); • the matters in new paragraphs 188B(3)(c) (providing employees with a reasonable opportunity to consider a proposed enterprise agreement) and (d) (explaining the terms of a proposed enterprise agreement and their effect to employees) are taken to be matters relating to the agreement as proposed to be varied; and • the matters in new paragraph 188B(3)(e) (providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing employees of voting arrangements) are taken to be matters relating to the variation. 1005. New subsection 216DD(3) would permit regulations to be made to ensure that further modifications to specified provisions in Part 2-4 may be made for the purposes of the House of Representatives 177 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations FWC determining whether it is satisfied that the variation of the single interest employer agreement has been genuinely agreed to by affected employees. Among other things, this new subsection 216DD(3) assists in addressing unforeseen circumstances where further modifications to the approval requirements may be necessary. 1006. New subsection 216DD(3) is based on existing subsection 211(6) of the FW Act, which applies in respect of other variations to enterprise agreements. By way of example, the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020 that were made in April 2020 during the COVID-19 pandemic shortened the access period for variations of an enterprise agreement to a one-day period (instead of the usual seven-day period). This was important for assisting employers and employees rapidly to vary their agreements to address the impacts of the pandemic. Section 216DE--When the FWC may refuse to approve a variation of a single interest employer agreement 1007. New subsection 216DE(1) would make clear that, if an application for the approval of a variation of a single interest employer agreement is made under section 216DA (application for approval of a variation to add employer and employees - joint variation) or section 216DB (application by employee organisation for approval of a variation to add new employer and employees), the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in: • a person committing an offence against a law of the Commonwealth; or • a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth. 1008. New subsection 216DE(2) would make clear that the FWC may refuse to approve the variation, even if the FWC would have otherwise been required to approve the variation under section 216DC. 1009. New subsection 216DE(3) would make clear that, if the FWC refuses to approve a variation of a single interest employer agreement under section 216DE, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. New section 216DE is based existing section 214. Section 216DF--When variation comes into operation 1010. New subsection 216DF would make clear that, if a variation of a single interest employer agreement is approved under new section 216DC, the variation would operate from the day specified in the decision to approve the variation. Fair Work Legislation 178 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations Item 630: At the end of subsection 230(2) 1011. Existing section 230 of the FW Act sets out when the FWC may make a bargaining order. Existing subsection 230(2) requires the FWC to be satisfied that one of a list of specified circumstances must apply before the FWC may make a bargaining order. This item would insert new paragraph 230(2)(e) to add to that list the circumstance that all of the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement. This amendment is necessary to permit the FWC to make bargaining orders in relation to a proposed single interest employer agreement where all the employers have been specified in a single interest employer authorisation (whether or not they agreed to bargain or initiated bargaining). Item 631: Subdivision A of Division 10 of Part 2-4 1012. This item would repeal the requirement for certain employers that will be covered by a proposed enterprise agreement to apply for a Ministerial declaration prior to obtaining a single interest employer authorisation from the FWC. Item 623: Subdivision B of Division 10 of Part 2-4 (heading) 1013. This item would repeal the heading to Subdivision B--Single interest employer authorisations and is a consequential amendment. Item 633: Subsection 248(1) 1014. This item would repeal existing subsection 248(1) and replace it with a new subsection 248(1) that provides that, in relation to a proposed enterprise agreement that will cover two or more employers, either those employers or a bargaining representative of an employee who will be covered by the agreement, may apply to the FWC for a single interest employer authorisation under section 249 in relation to the proposed enterprise agreement. 1015. Note 1 under new subsection 248(1) would make clear that the effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (within the meaning of existing subsection 172(5)(c). 1016. Note 2 under new subsection 248(1) would make clear that a person cannot be a bargaining representative for a proposed enterprise agreement if they are excluded for the purposes of that agreement by an order under new section 178C which would be inserted by item 644 of Schedule 1. New section 178C would permit the FWC, in the circumstances described in that section, to make an order that has the effect of excluding a person who has a relevant record of repeatedly not complying with the FW Act from applying for a single interest employer authorisation. 1017. Existing subsection 248(2) of the FW Act sets out what an application for a single interest employer authorisation under new subsection 248(1) must specify. House of Representatives 179 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations Item 634: Subsection 249(3) 1018. Existing section 249 of the FW Act sets out when the FWC must make a single interest employer authorisation. 1019. Among other things, existing subsection 249(1) of the FW Act requires the FWC to make a single interest employer authorisation if an application is made and the employers either meet the franchise requirements in existing subsection 249(2) or are specified in a declaration as required by existing subsection 249(3). 1020. This item would repeal subsection 249(3) and replace it with new subsections 249(3)- (3D), which are intended to remove unnecessary limitations on access to single interest employer authorisations. 1021. New subsection 249(3) would provide that employers may bargain together under a proposed single interest employer authorisation if the FWC is satisfied that: • if the application has been made by a bargaining representative of an employee who will be covered by the agreement, each employer has either consented to the application or is covered by subsection 249(3A) which sets out additional criteria of which the FWC must be satisfied; and a majority of employees who are employed by the employers at a time determined by the FWC and who will be covered by the agreement want to bargain with the employers that will be covered by the agreement (see new paragraph 249(3)(a) and new subsection 249(3B)); • the employers have clearly identifiable common interests (see new paragraph 249(3)(b) and new subsection 249(3C)); and • the group of employees who will be covered by the agreement was fairly chosen (see new paragraph 249(3)(c) and new subsection 249(3D)); and • at least some of the employees that will be covered by the agreement are represented by an employee organisation (see new paragraph 249(3)(d)); and • the employers and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the authorisation (see new paragraph 249(3)(e)); and • it is not contrary to the public interest to make the authorisation (see new paragraph 249(3)(f)). 1022. The requirement in new paragraph 249(3)(d) would ensure that at least some of the employees that will be covered by the agreement will have experienced and expert representation by an employee organisation. 1023. The requirement in new paragraph 249(3)(f) would provide the FWC with scope to consider all the relevant circumstances and the broader public interest of making the authorisation. For example, the FWC could consider the broader economic ramifications of making the authorisation. The public interest would be likely to favour Fair Work Legislation 180 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations the making of authorisations that inhibit a 'race to the bottom' on wages and conditions while discouraging the making of authorisations that could adversely affect competition on the basis of factors such as quality (including service levels) and innovation. The views of the employers and employee bargaining representatives obtained under new paragraph 249(3)(e) could be relevant to the FWC's consideration of the public interest, including whether they support the authorisation being made. For example, if an employee organisation did not support an authorisation being made, its reasons for not supporting the authorisation would be a relevant factor to consider. 1024. New subsection 249(3A) would make clear that an employer is covered by that subsection (for the purposes of paragraph new paragraph 249(3)(a)) if the FWC is satisfied of the following criteria: • the employer is not a small business employer (see new paragraph 249(3A)(a)). Small business employer is defined in section 23 of the FW Act; • the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement (see new paragraph 249(3A)(b)); • the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement (see new paragraph 249(3A)(c)); and • the employer is not covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation (see new paragraph 249(3A)(d)). 1025. The effect of new subparagraph 249(3)(a)(i) together with new paragraph 249(3A)(a) is that a small business may consent to be included in an application for a single interest employer authorisation but cannot be included in an application without their consent. 1026. New paragraphs 249(3A)(b) and (c) ensure that the employer is listed in only one authorisation for the purpose of bargaining in relation to particular employees. An application to remove an employer from a particular authorisation so that, for example, the employer may be included in another authorisation, may be made under new subsection 251(1) inserted by item 637 of Schedule 1 to this Bill. 1027. New paragraph 249(3A)(d) would preclude an employer from being included in an application by an employee bargaining representative for a single interest employer authorisation if the employer is relevantly covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation. 1028. New subsection 249(3B) would provide that, for the purposes of subparagraph 249(3)(a)(ii), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate. This means that the FWC could, for example, be satisfied that a majority of the employees want to be House of Representatives 181 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations covered by the agreement having regard to a petition of a representative sample of the employer's employees or the number of employees voting in support in a ballot of some of the employer's employees. 1029. New subsection 249(3C) would provide that, for the purposes of paragraph 249(3)(b), matters that may be relevant in determining whether employers have clearly identifiable common interests include geographical location, regulatory regime and the nature of the enterprises to which the agreement will relate and the terms and conditions of employment in those enterprises. 1030. New subsection 249(3D) would make clear that if the agreement will not cover all employees of an employer, the FWC must, in deciding for the purposes of paragraph 249(3)(c) whether the group of employees to be covered by the agreement is fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. Item 635: Subparagraph 249(4)(b)(i) 1031. Existing subsection 249(4) provides for the period of operation of a single interest employer authorisation. 1032. This item would make a technical amendment to subparagraph 249(4)(b)(i) to make clear that, where the enterprise agreement to which the single interest employer authorisation relates is made, the authorisation ceases to be in operation at the same time as that enterprise agreement is made. This item resolves any ambiguity as to when an authorisation ends when a single interest employer agreement to which the authorisation relates is made. Item 636: After subsection 249 1033. This item would insert new section 249A into the FW Act to make clear that, once a single interest employer authorisation is made, an employer specified in that authorisation must not bargain for another agreement with employees proposed to be covered by the single interest employer agreement until the employer is removed from the authorisation or the authorisation ceases to be in operation. An application to remove an employer from an authorisation may be made under new subsection 251(1) inserted by item 637 of Schedule 1 to this Bill. Item 637: Subsections 251(1) and (2) 1034. This item would repeal existing subsections 251(1) and (2), which outline the circumstances in which a single interest employer authorisation may be varied to remove an employer's name and replaces them with new subsections 251(1) and (2). 1035. New subsection 251(1) would provide that the employer, or a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the Fair Work Legislation 182 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations authorisation relates, may apply to the FWC for a variation of a single interest employer authorisation to remove the employer's name from the authorisation. 1036. A note under new subsection 251(1) makes clear that a person is not a bargaining representative for the purposes of a proposed enterprise agreement if they are excluded for the purposes of that agreement by an order under new section 178C, which would be inserted by item 644 of Schedule 1. New section 178C would permit the FWC, in the circumstances described in that section, to make an order that has the effect of excluding a person who has a relevant record of repeatedly not complying with the FW Act from being a bargaining representative for a proposed enterprise agreement. 1037. New subsection 251(2) would provide that, if an application to vary a single interest employer authorisation is made under subsection 251(1), the FWC must vary the authorisation to remove the employer's name, if the FWC is satisfied that: • employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express their views (if any) about the application to the FWC; and • because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation. 1038. A change in circumstances would need to be a substantial and operative change in the employer's circumstances and not merely a change of mind or preference. A relevant change could be, for example, that the employer no longer has any employees that would be covered by the scope of the proposed enterprise agreement. Item 638: Subsection 251(3) (heading) 1039. This item would repeal the heading of existing subsection 251(3) and replace it with a new subheading to make clear that subsection 251(3) sets out requirements for an application by an employer to vary a single interest employer authorisation to add that employer. Item 639: Subsection 251(4) 1040. This item would repeal existing subsection 251(4) and replace it with new subsection 251(4), which sets out the criteria of which the FWC must be satisfied before varying a single interest employer authorisation to add a new employer (on application by the employer). This item would also insert new subsections 251(5)-(7) which would permit a bargaining representative of an employee to apply to vary a single interest employer authorisation to add a new employer, provided the specified criteria are met. 1041. New subsection 251(4) would provide that, if an employer applies to vary a single interest employer authorisation to add the employer's name under subsection 251(3), the FWC must vary the authorisation if the FWC is satisfied that: House of Representatives 183 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations • the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; • no person coerced, or threatened to coerce, the employer to make the application; and • the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) would continue to be met if the employer's name were added. 1042. New subsection 251(5) would permit a person that is a bargaining representative for the proposed enterprise agreement to which the single interest employer authorisation relates, and of an employee of the new employer, to apply to the FWC to vary the authorisation to add the name of the new employer. 1043. A Note under new subsection 251(5) would make clear that a person cannot be a bargaining representative if they are excluded for the purposes of the agreement by an order under new section 178C (exclusion due to a relevant record of repeated non- compliance with the FW Act). 1044. New subsection 251(6) would provide that, if a bargaining representative of an employee applies to vary an existing single interest employer authorisation to add the name of a new employer to the authorisation under new subsection 251(5), the FWC must vary the authorisation to add the new employer's name if the FWC is satisfied of the following criteria: • the new employer is not a small business employer (see new paragraph 251(6)(a). Small business employer is defined in section 23 of the FW Act; and • the new employer is not covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation of the authorisation (see new paragraph 251(6)(b)); • the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application (see new paragraph 251(6)(c)); and • the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) would continue to be met if the new employer's name were added (see new paragraph 251(6)(d)); and • a majority of the employees who are employed by the new employer at a time determined by the FWC; and who will be covered by the proposed enterprise agreement want to bargain for the agreement (see new paragraph 261(6)(e). Fair Work Legislation 184 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations 1045. New subsection 251(7) would make clear that, for the purposes of paragraph 251(6)(e) (majority support of employees), the FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. This means that the FWC could, for example, be satisfied that a majority of the employees want to be covered by the agreement having regard to a petition of a representative sample of the employer's employees or the number of employees voting in support in a ballot of some of the employer's employees. Item 640: At the end of Division 10 of Part 2-4 1046. This item would insert new section 252A into Division 10 of Part 2-4 of the FW Act in order to set out the consequences for a single interest employer authorisation of an order by the FWC excluding a person for the purposes of a proposed enterprise agreement under new section 178C (exclusion of a bargaining representative due to relevant record of repeated non-compliance with the FW Act). 1047. New subsection 252A(1) would provide that, if an employer is excluded for the purposes of a proposed enterprise agreement under section 178C, the FWC must: • remove the employer's name from an application made under subsection 248(1) for a single interest employer authorisation in relation to the agreement and, if the effect of this is that there is only one employer specified in the application, refuse the application; or • remove the employer's name from a single interest employer authorisation made under subsection 249(1) in relation to the agreement and, if the effect of this is that there is only one employer specified in the authorisation, revoke the authorisation; and • refuse any application made under subsection 251(3) (by the employer) or subsection 251(5) (by a bargaining representative for an employee) to add the employer to an existing single interest employer authorisation in relation to the agreement. 1048. New subsection 252A(2) would provide that, if an application is made under subsection 248(1) or 251(1) or (5) to make or vary a single interest employer authorisation in relation to a proposed agreement but, before that application is decided, the FWC makes an order excluding a bargaining representative of an employee for the purposes of that agreement under new section 178C, the FWC must refuse that application. 1049. New subsection 252A(3) would provide that, if the effect of one or more orders excluding a person for the purposes of an agreement under new section 178C is that no employees that would be covered by a proposed enterprise agreement are represented by a bargaining representative that is an employee organisation, the FWC must: • refuse an application for a single interest employer authorisation in relation to the agreement; or House of Representatives 185 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 21 - Single interest employer authorisations • revoke any such authorisation that has already been made. Fair Work Legislation 186 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 22 - Varying enterprise agreements to remove employers and their employees PART 22--VARYING ENTERPRISE AGREEMENTS TO REMOVE EMPLOYERS AND THEIR EMPLOYEES Overview 1050. Part 22 would amend the FW Act to empower an employer and affected employees to jointly make a variation to a single interest employer agreement or multi-enterprise agreement (as the case may be), so they cease to be covered. The variation would take effect if approved by the FWC. Amendments to the Fair Work Act 2009 Item 641: In the appropriate position in Division 7 of Part 2-4 1051. This item would insert new Subdivision AE (Variation of single interest employer agreement or multi-enterprise agreement to remove employer and employees) in the appropriate position in Division 7 of Part 2-4. Section 216E--Variation of single interest employer agreement or multi-enterprise agreement to remove employer and employees with consent 1052. By new subsection 216E(1) an employee and affected employees may jointly make a variation to a specified enterprise agreement mentioned in subsection (2), to cease being covered by the agreement. 'Affected employees' would be the employees employed at the time who would cease to be covered by the agreement if the variation was approved by the FWC. 1053. New subsection 216E(2) would apply subsection (1) to single interest employer agreements and multi-enterprise agreements that are made after the commencement of the subsection, if the agreement is not a greenfields agreement and there are 2 or more employers covered by the agreement. 1054. A variation would have no effect unless approved by the FWC (new subsection 216E(3)). 1055. New subsections 216E(4) - (6) would set out the process for approval of the proposed variation by employee vote, which could be by ballot or by an electronic method, and includes safeguards to protect the integrity of the process. 1056. New subsection 216E(7) would provide that a variation is made when a majority of the affected employees who cast a valid vote approve the variation. Section 216EA--Application for the FWC's approval of variation 1057. New section 216EA would set out the process for applying to the FWC to have a variation approved, and specifies who may apply (i.e. the employer or an affected employee, or an employee organisation covered by the agreement that is entitled to represent the industrial interests of an affected employee). The application must be made within 14 days after the variation (or a later time, if the FWC considers it fair). House of Representatives 187 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 22 - Varying enterprise agreements to remove employers and their employees Regulations could be prescribed relating to the signing of variations (eg specifying who may sign the agreement and type of signature that is permissible). Section 216EB--When the FWC must approve variation of single interest employer agreement or multi-enterprise agreement to remove employer and employees 1058. New section 216EB would require the FWC to approve a variation made under new section 216EA if satisfied the requirements in subsections 216EB(a) - (d) were met. That is: • affected employees were given a fair and reasonable opportunity to decide whether to approve the variation etc. (see new subsection 216E(5); • affected employees voted on whether to approve the variation, by ballot or by an electronic method, and a majority of those who cast a valid vote approved the variation; • there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation; and • each employee organisation covered by the agreement, that is entitled to represent the interests of one or more affected employees, agrees to the variation. Section 216EC--When variation comes into operation 1059. New section 216EC would provide that a variation that is approved under section 216EB operates from the day specified by the FWC. The employer and affected employees would no longer be covered by the agreement after that time. Section 216ED--Effect of variation 1060. New section 216ED makes clear that an agreement that has been varied under the new Subdivision remains a single interest employer agreement or multi-enterprise agreement (as the case may be). Fair Work Legislation 188 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 23 - Cooperative workplaces PART 23--COOPERATIVE WORKPLACES Overview 1061. Part 23 of the Bill would improve the bargaining process for enterprise agreements and introduce the cooperative workplace bargaining stream. The proposed changes would empower the FWC to: • exclude persons for the purposes of an agreement in certain circumstances if the agreement is a cooperative workplace agreement, single interest employer agreement, or supported bargaining agreement; and • vary an existing cooperative workplace agreement to add employers and employees. 1062. This Part of the Bill implements one of the outcomes of the Jobs and Skills Summit in relation to boosting job security and wages, and creating safe, fair and productive workplaces by improving the enterprise bargaining process. Amendments to the Fair Work Act 2009 Item 642--Section 12 1063. Section 12 of the FW Act contains the Dictionary. This Item would introduce the definition of a cooperative workplace agreement into the FW Act. 1064. This item would define the term to mean a multi-enterprise agreement where there is no supported bargaining authorisation in operation immediately before the agreement is made. Item 643--At the end of section 176 1065. Section 176 of the FW Act sets out who are the bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement. Item 643 introduces an exception such that a person who is excluded by an order under new section 178C cannot be a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement. 1066. The purpose of this item is to introduce consequences for a person subject to an order under new section 178C. It is intended this would incentivise bargaining parties and representatives to comply with the provisions of the FW Act. Item 644--At the end of Division 3 of Part 2-4 1067. This item would insert new section 178C into the FW Act to enable the FWC to make orders which effectively ban a person from coverage by an enterprise agreement if the FWC is satisfied of specified matters. The possibly of an exclusion order is intended to incentivise persons to reform their behaviour and improve compliance with the FW Act House of Representatives 189 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 23 - Cooperative workplaces 1068. The FWC would be able to exercise its powers to make these orders on application of a bargaining representative for a proposed enterprise agreement, or on the FWC's own initiative. The FWC must make the order if it is satisfied that the person who is to be excluded has a record of repeatedly not complying with the FW Act that is relevant to the agreement such that it makes it inappropriate for the excluded person to be a bargaining representative for a proposed agreement, or for the excluded person to apply for a proposed variation of an existing agreement. 1069. There are specified matters which the FWC must consider in order to determine whether a person has a record of repeatedly not complying with the FW Act such that it is inappropriate for them to act as a bargaining representative or to apply for a variation of an agreement. 1070. Specifically, the FWC is to consider any court findings in the 18 months preceding the application for the exclusion order where the person to be excluded was found to have contravened a civil remedy provision of the FW Act or committed an offence against the FW Act. The FWC is to then consider the number and seriousness of any contraventions, as well as any remedial steps taken to rectify contraventions. 1071. New subsection 178C(7) provides that contraventions which relate to the industry or sector in which work is to be performed under the proposed agreement or the agreement as proposed to be varied will be relevant. Item 645--At the end of section 183 1072. Section 183 sets out when an employee organisation is entitled to seek to be covered under an enterprise agreement. Item 645 would introduce a new subsection 183(3) which would preclude a person who is subject to an exclusion order under new section 178C from being covered by the agreement. Item 646--After section 183 1073. This Item would insert new section 183A which would apply in circumstances where an enterprise agreement is made and expressed to cover a person that is subject to an exclusion order under new section 178C. In those circumstances, the enterprise agreement must be varied so that it is not expressed to cover the excluded person before an application for approval under section 185 can be made. 1074. The purpose of this provision is consistent with the policy objective of deterring non- compliance with the FW Act by setting out clear consequences for persons subject to an exclusion order. Item 647--After subsection 186(2) 1075. Section 186 of the FW Act sets out the requirements of which the FWC must be satisfied before it can approve an enterprise agreement. Fair Work Legislation 190 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 23 - Cooperative workplaces 1076. This Item would introduce a new subsection 186(2A) to require that the FWC would need to be satisfied that at least some of the employees to be covered by the agreement were represented by an employee organisation in relation to bargaining for the agreement. This does not include any employee organisations subject to an exclusion order under new section 178C. 1077. As cooperative workplace agreements are by definition intended to cover multiple businesses and their employees, they can potentially affect the rights and obligations of a large number of individuals. This item acts as a safeguard to balance bargaining power between employees to be covered under a cooperative workplace agreement and their many employers. The requirement that at least some employees are represented by an employee organisation is intended as a safeguard. Item 648--Subsection 187(3) 1078. This Item would repeal and substitute subsection 187(3) to expand the operation of subsection 187(3) to require that the FWC is satisfied that the notice requirements pursuant to new section 183A and section 184 have been met before it can approve the agreement. 1079. New subsection 183A requires a bargaining representative vary an agreement if it is expressed to cover a person excluded by an order under new section 178C. Item 649--In the appropriate position in Division 7 of Part 2-4 1080. This Item would insert a new Subdivision AC in Division 7 of Part 2-4 to allow an employer and their employees who are not covered by a cooperative workplace agreement to jointly apply for a variation of that cooperative workplace agreement. This would have the effect of extending coverage of the agreement to the employer and their employees (affected employees). 1081. The proposed approval process to vary the agreements to add employers and affected employees is similar to the processes set out in Subdivision A of Division 7 of Part 2-4 relating to variation of enterprise agreements. 1082. New section 216C would set up the framework which provides that an employer may request their affected employees to vote on the proposal to vary the cooperative workplace agreement and consequently to become covered under the agreement. This voting process would be in substance similar to the existing variation process for enterprise agreements in the FW Act. 1083. New section 216CA would operate once affected employees have voted in favour of the variation. This section sets out the joint application process for FWC approval to vary the agreement. The process set out in this section would be in substance the same as the process set out in existing section 210 of the FW Act relating to application for variation of a proposed enterprise agreement. House of Representatives 191 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 23 - Cooperative workplaces 1084. New section 216CB would set out the circumstances when the FWC, if satisfied of the relevant criterion, must approve the variation of the agreement to add the employer and their affected employees. These provisions are in substance the same as the provisions in the existing section 211 of the FW Act dealing with when the FWC must approve variations of an enterprise agreement. 1085. New paragraph 216CB(1)(c) would require the FWC to determine whether or not the variation to the cooperative workplace agreement has been genuinely agreed to by affected employees. New section 216CC would provide the factors the FWC must consider making this determination. 1086. New section 216CD would provide for circumstances in which the FWC may refuse to approve a variation of an existing cooperative workplace agreement to add employers and employees. These circumstances are substantively the same as those set out in existing section 214 of the FW Act with respect to when the FWC may refuse to approve a variation of an enterprise agreement. 1087. New section 216CE would provide for the period during which a variation, once approved by the FWC, comes into operation. This provision reflects the position for variation of enterprise agreements generally, as set out in the existing section 216 of the FW Act. Item 650--After subsection 417(2) 1088. Section 417 prohibits industrial action being organised or engaged in before the nominal expiry date of the enterprise agreement. Specifically, section 417(1)(a) prohibits industrial action from the date an enterprise agreement is approved by the FWC until its nominal expiry date has passed. 1089. Item 650 would ensure this provision operates in respect of an employer and their affected employees who have become covered under an existing cooperative workplace agreement pursuant to new section 216C. This amendment clarifies that industrial action is not available in relation to proposed or existing cooperative workplaces agreements. Fair Work Legislation 192 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 24 - Enhancing the small claims processes PART 24--ENHANCING THE SMALL CLAIMS PROCESSES Overview 1090. This Part would increase the monetary cap on the amounts that can be awarded in small claims proceedings under the FW Act from $20,000 to $100,000. This Part would also enable the court in a small claims proceeding to award to a successful claimant any filing fees they paid to the court as costs, from the other party. Amendments to the Fair Work Act 2009 Item 651: Paragraph 548(2)(a) 1091. The small claims procedure provides the specified courts with the flexibility to dispose of small claims more simply, quickly and cheaply. For example, the court is not bound by any rules of evidence, and is also empowered to act in an informal manner and without regarding to legal forms and technicalities. The small claims procedure is available in the Federal Circuit and Family Court (Division 2) and state and territory magistrates' courts or their equivalent. 1092. Increasing the small claims cap would expand access to the small claims procedure, enabling more claimants to benefit from its simpler, quicker and cheaper approach to dispute resolution. 1093. The current threshold was set in 2009 with the introduction of the FW Act but has not been changed since. It could require prospective claimants with modest claims that exceed $20,000 to abandon part of their claim to bring it within the monetary cap or not use the small claims procedure at all (instead using a full court process which is expensive, time-consuming and complex). 1094. These concerns have been highlighted by recent inquiries. The Migrant Workers' Taskforce, established in response to revelations of significant wage underpayments in certain industries, called on the Government to consider whether the small claims cap is too low and should be increased. Evidence provided to the Senate Unlawful Underpayments Inquiry similarly cited the impact of the current small claims threshold as a barrier to seeking redress for wage theft. Item 652: After subsection 548(2) 1095. This item would clarify that the monetary cap for small claims referred to in existing subsection 548 does not include any amount of interest that may be awarded under existing section 547. 1096. This ensures that access to the small claims procedure is not inadvertently restricted through the awarding of interest up to judgment. House of Representatives 193 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 24 - Enhancing the small claims processes Item 653: At the end of section 548 1097. This item would amend the small claims procedure provided for in existing section 548 to enable the court in a small claims proceeding to award a successful claimant any filing fees paid to the court as costs against the other side. It would also clarify that the new rule applies, despite the general rule as to costs in existing section 570. By overruling section 570, it is expected that the courts would apply (subject to their overriding discretion in the interests of justice) the 'usual rule' that a successful party is entitled to their costs - with the result that an applicant employee (or organisation) would generally expect to recover their filing fee if their claim succeeded. 1098. The proposed amendment addresses concerns raised by the Migrant Workers' Taskforce, and during the Senate Unlawful Underpayments Inquiry, that filing fees can serve as a disincentive to commencing a small claim. The proposed measure would reduce the disincentive by enabling successful claimants to seek to recover any filing fees paid to the court as costs against the other side, and ensure that any compensation is not diminished by the costs incurred in lodging the claim. Fair Work Legislation 194 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 25 - Prohibiting employment advertisements with pay rate that would contravene the Act PART 25--PROHIBITING EMPLOYMENT ADVERTISEMENTS WITH PAY RATE THAT WOULD CONTRAVENE THE ACT Overview 1099. This Part would insert a new provision prohibiting national system employers from advertising employment at a rate of pay that would contravene the FW Act or a fair work instrument. It would require advertisements of piecework to include any periodic rate of pay to which the pieceworker would be entitled. Employers would be excused if they had a reasonable excuse for not complying. 1100. This measure addresses concerns raised by both the Migrant Workers' Taskforce and the Senate Unlawful Underpayments Inquiry. The Migrant Workers' Taskforce found that migrant workers are specifically targeted with jobs advertised at below minimum wage rates, which increases the risk that these workers will be underpaid once they commence work. The Migrant Workers' Taskforce recommended that legislation be amended to prohibit persons from advertising jobs with pay rates that would breach the FW Act. 1101. The proposed measure would reinforce the expectation that employers must consider their workplace obligations before advertising jobs. The proposed measure would also encourage employers to develop a broader organisational culture that prioritises awareness of, and compliance with, the FW Act. Amendments to the Fair Work Act 2009 Item 654: At the end of subsection 6(7) 1102. This item would amend the guide to the FW Act by adding a reference to the new requirements. Item 655: At the end of section 528 1103. This Part would amend the guide to Part 3-6 of the FW Act to add a reference to the new requirements. Item 656: At the end of Part 3-6 1104. This item would add a new Division to the end of Part 3-6, including new section 536AA. Subsection 536AA--Employer obligations in relation to advertising rates of pay 1105. New subsection 536AA(1) would prohibit an employer from advertising, or causing to be advertised, that the employer was offering employment at a rate of pay that would contravene the FW Act or a fair work instrument, if the advertised employment occurred. This requirement would capture, for example, any casual loadings payable under the relevant instrument if the employment was specified as being on a causal basis. House of Representatives 195 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 25 - Prohibiting employment advertisements with pay rate that would contravene the Act 1106. The prohibition would apply to employers, not publishers. The prohibition would only apply if an employer opted to specify a rate of pay in their advertising. 1107. The term 'fair work instrument' is defined by section 12 of the FW Act. 1108. A legislative note would explain the subsection is a civil remedy provision (see Part 4- 1). 1109. For example, a job ad that specified a rate of pay below the applicable modern award rate for the job would contravene the new requirement. The rate of pay would also need to remain compliant for the duration of the advertising (e.g. while the job ad remained 'live'). 1110. The prohibition is not limited to any particular advertising mediums (e.g. print, broadcast, outdoor, digital etc). However, informal communications made outside a business context are unlikely to involve advertising, as that term is ordinarily understood (e.g. word of mouth). 1111. New subsection 536AA(2) would extend the protection to pieceworkers who are paid piece rates, but also entitled a periodic rate of pay. While not specified, the entitlement could come from any legally enforceable source, such as a modern award. 1112. If an employer advertises, or causes to be advertised, that the employer is offering employment as a pieceworker, and the worker would also be entitled to a periodic rate of pay, the advertisement would also have to: • specify that rate of pay (or a higher rate of pay); or • include a statement to the effect that a periodic rate of pay is payable in relation to the employment. 1113. This provision would not require affected employers to specify a piece rate of pay in their advertising, but if they choose to, the provision would apply. This would ensure prospective pieceworkers were informed about their entitlement to minimum rates. For example, a compliant job ad could state: 'Fruit picker wanted, $x/kg', minimum hourly rate $25/hr', or 'Fruit picker wanted, competitive piece rates, min $25/hr', or 'Fruit picker wanted, competitive piece rates, min hourly rates apply'. 1114. The term 'periodic rate of pay' is not defined, so its ordinary meaning would apply. That is, a time-based rate of pay, such as an hourly or weekly rate of pay. 1115. A legislative note would explain the subsection is a civil remedy provision (see Part 4- 1). 1116. New subsection 536AA(3) would relieve employers of liability for a contravention if they had a 'reasonable excuse' for non-compliance. The term 'reasonable excuse' is not defined. What is a reasonable excuse depends on the circumstances of the individual case, taking into account the purpose of the provision (i.e. new section 536AA). A reasonable excuse is not confined to physical or practical difficulties in complying. It Fair Work Legislation 196 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 25 - Prohibiting employment advertisements with pay rate that would contravene the Act includes any excuse which would be accepted by a reasonable person as sufficient to justify non-compliance, taking into account the purpose of the requirement. For example, an employer would have a reasonable excuse they exercised due diligence to ensure they advertised compliant rates of pay, but incorrect advice about the applicable rates was given and reasonably relied on. 1117. The defence of reasonable excuse is justified because it anticipates a range of reasonable excuses could be provided by an employer for advertising a non-compliant rate of pay. It provides fair and adequate protection for employers who contravene the new requirements, but have a reasonable excuse. Item 657: Subsection 539(2) (after table item 29) 1118. This item would add new subsections 536AA(1) and (2) as civil remedy provisions to the table in subsection 539(2), which sets out the standing requirements, the courts that may grant relief, and the maximum penalty for contraventions. 1119. The maximum penalty would be 60 penalty units for individuals (5 times higher for bodies corporate). This is commensurate with penalties for misrepresentations about workplace rights under section 345 of the FW Act. Item 658: After paragraph 557(2)(o) 1120. This item would add a reference to new subsections 536AA(1) and (2) to the list of civil remedy provisions in existing subsection 557(2). Two or more contraventions of a provision would be, subject to existing subsection 557(3), taken to constitute a single contravention if committed by the same person and if the contraventions arose out of a course of conduct by the person. 1121. Existing section 557 prevents a person from being punished multiple times for the same breach of a specified civil remedy provision. For example, if an employer advertised a non-compliant job ad on two websites at the same time, s 557 would deem there to be one contravention, arising from a course of conduct. Item 659: After paragraph 716(1)(f) 1122. This item would amend subsection 716(1) to enable a FW Inspector to issue a compliance notice to a person the FW Inspector reasonably believes has contravened a provision of new subsections 536AA(1) or (2). A compliance notice could require an employer to take specified action in relation to a non-compliant employment advertisement, for example, to take the advertisement down or revise its content. House of Representatives 197 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions PART 26--APPLICATION, SAVING, TRANSITIONAL AND MISCELLANEOUS CONSEQUENTIAL PROVISIONS Overview 1123. Part 26 amends the FW Act to make application, saving, transitional and miscellaneous consequential provisions arising from the amendments made by the Bill. Division 1--Application, saving and transitional provisions Amendments to the Fair Work Act 2009 Item 660: In the appropriate position in Schedule 1 1124. Item 660 inserts new Part 13 into Schedule 1 (Application, saving and transitional provisions relating to amendments to this Act) of the FW Act. Division 1 - Definitions Clause 55: Definitions 1125. New clause 55 would insert three new definitions that apply to new Part 13. • 'amended Act' would mean the FW Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; • 'amending Act' would mean the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; and • 'commencement' would mean the commencement of the new Part 29. Division 2 - Amendments made by Part 1 of Schedule 1 to the amending Act Clause 56: Appeal of decisions of the Registered Organisations Commissioner 1126. This is a transitional provision that would provide that decisions of the RO Commissioner or delegate of the RO Commissioner may continue to be appealed. The exception is decisions by the RO Commissioner under section 293G(3) to make an order for an alternative disclosure arrangement. Division 3 - Amendments made by Part 4 of Schedule 1 to the amending Act Clause 57: Objects of the Act 1127. New subclause 57(1) would require the FWC to apply the new factors in the object of the FW Act, the modern awards objective and the minimum wages objective, to any proceeding that is on foot at commencement and in any future matter or proceeding that arises after commencement (other than as they relate to the annual wage review). Fair Work Legislation 198 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions 1128. New subclause 57(2) would also require the FWC to apply the new factors in the minimum wages objective as part of the annual wage review conducted in the financial year beginning on 1 July 2022, or a later financial year. Division 4 - Amendments made by Part 5 of Schedule 1 to the amending Act Clause 58: Equal remuneration 1129. This item would provide that section 157 of the FW Act, as amended, would apply in respect of a determination or modern award made under that section after commencement. This would have the effect of applying these amendments to proceedings which are currently in progress before the FWC. 1130. This item would also provide that new subsections 302(3A) to (4A) of the FW Act, as amended, would apply after commencement in relation to the performance of any functions or powers exercised by the FWC. This would have the effect of applying these amendments to proceedings which are currently in progress before the FWC, and any matters arising after commencement. 1131. If there are any ERO applications which have not been finally determined by commencement, subsection 302(5) of the FW Act, as amended, would apply in relation to the application. Division 5 - Amendments made by Part 7 of Schedule 1 to the amending Act Clause 59: Pay secrecy 1132. This item sets out when the provisions of this Part 7 apply. 1133. Subclauses 333B(1) and (2) would apply to employees in the following circumstances: • From commencement--to all employees with new contracts of employment entered into on or after commencement, and to employees with existing contracts, where those contracts do not contain a pay secrecy term. • From the time of variation of the contract--to employees with existing contracts containing terms related to pay secrecy, where those contracts are varied by mutual agreement of the parties after commencement. 1134. Clause 333C would apply in relation to a fair work instrument made before, on or after commencement. As a result, any pay secrecy terms in fair work instruments (whether new or existing) would have no effect after commencement. 1135. Clause 333C would apply to contracts in the following circumstances: • From commencement--to all new contracts of employment entered into on or after commencement, and to existing contracts, where those contracts do not contain a pay secrecy clause. House of Representatives 199 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions • From the time of variation of the contract--to existing contracts containing a clause related to pay secrecy, where those contracts are varied by mutual agreement of the parties after commencement. • Clause 333D would apply in relation to a contract of employment entered into on or after six months after commencement. This delay is intended to provide employers with sufficient time to arrange compliance with the new prohibition on pay secrecy terms. Division 6 - Amendments made by Part 8 of Schedule 1 to the amending Act Clause 60: Prohibiting sexual harassment in connection with work 1136. The new prohibition on sexual harassment in connection with work would apply to sexual harassment that occurs on and after the commencement of Division 1 of Part 8 of Schedule 1 to the Bill. To ensure a person who is sexually harassed before the commencement of that Division can access a remedy, clause 60 would preserve the operation of the existing stop sexual harassment order framework in Part 6-4B of the FW Act in relation to sexual harassment perpetrated before the commencement of the Division. A person could also seek a stop sexual harassment order after the commencement of Division 1 of Part 8 of Schedule 1 to the Bill in relation to sexual harassment that occurs after the commencement of that Division if the harassment formed part of a course of conduct that began before the commencement of the Division. 1137. Clause 60 would also preserve the operation of stop sexual harassment orders made before the commencement of Division 1 of Part 8 of Schedule 1 to the Bill. Division 7 - Amendments made by Part 9 of Schedule 1 to the amending Act Clause 61: Extension of anti-discrimination and special measures 1138. Subclause 61(1) would provide that amendments made by Part 9 of Schedule 1 to the Bill would apply on and after commencement, subject to subclauses 61(2) and (3). This means, for example, that any terms in modern awards that discriminate on the basis of breastfeeding, gender identity or intersex status would have no effect from commencement. 1139. Subclause 61(2) would provide that the amendments made by Part 9 of Schedule 1 to the Bill to subsection 195(1) and to add clause 172A would apply in relation to enterprise agreements made on and after commencement. This means, for example, that any terms in enterprise agreements made on or after commencement that discriminate on the basis of breastfeeding, gender identity or intersex status would have no effect. 1140. Subclause 61 (3) would provide that the amendments made by Part 61 to subsection 351(1) would apply in relation to adverse action taken on and after commencement. This means employees and prospective employees would also be protected from Fair Work Legislation 200 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions discriminatory adverse action on the basis of the three new protected attributes from commencement. Division 8 - Amendments made by Part 10 of Schedule 1 to the amending Act Clause 62: Fixed term contracts 1141. New clause 62 would: • confirm that section 333E would apply only to contracts that are entered into on or after the commencement of that section. The new prohibition would not apply to fixed term contracts entered into before section 333E commenced. • confirm that section 333E would apply to a contract entered into before commencement, if an employer entered into a subsequent contract after that contract ended, in the circumstances set out in subsection 333E(5). Clause 63: Resolving uncertainties and difficulties about interaction between enterprise agreements and the provisions of Division 5 of Part 2-9 1142. New clause 63 would allow the FWC, on application from an employer or employee who is subject to an enterprise agreement, to make a determination varying that enterprise agreement where it is inconsistent with Division 5 of Part 2-9, or where there is any uncertainty or difficulty relating to Division 5 of Part 2-9. 1143. The determination would apply from the day set out in the determination, which may be the day before the determination is made. Division 9 - Amendments made by Part 11 of Schedule 1 to the amending Act Clause 64: Requests for flexible working arrangements 1144. Clause 64 would provide that the amendments made by Division 1, 3 and 4 of Part 11 to Schedule 1 apply in relation to any request made under subsection 65(1) on or after commencement of that Part. Division 10 - Amendments made by Part 12 of Schedule 1 to the amending Act Clause 65: Termination of enterprise agreements after nominal expiry date 1145. Clause 65 would provide that the test provided in new section 226 applies to applications made under section 225 to terminate made either: after commencement of the Part or before commencement of the Part if the FWC has not made its decision on the application. House of Representatives 201 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions Division 11 - Amendments made by Part 14 of Schedule 1 to the amending Act Clause 66: Genuine agreement in relation to enterprise agreements 1146. This item would provide that despite the amendments made by Part 15 of Schedule 1, Part 2-4 of the FW Act continues to apply, as if the amendments had not been made, in relation to: • any proposed enterprise agreement for which the notification time occurs before the commencement of Part 15 of that Schedule; and • any variation of an enterprise agreement for which the employer's request that affected employees for the variation approve the variation by voting for it occurs before that commencement. Division 12 - Amendments made by Part 16 of Schedule 1 to the amending Act Clause 67: The better off overall test 1147. This item would apply the amendments made by this Part in relation to agreements made on and after commencement. Division 13 - Amendments made by Part 17 of Schedule 1 to the amending Act Clause 68: Validation of approval by enterprise agreement Clause 69: Validation of approval of variation of enterprise agreement 1148. New sections 602A and 602B would apply in relation to approval decisions given by the FWC before, at, or after commencement of the sections. Division 14 - Amendments made by Part 18 of Schedule 1 to the amending Act Clause 69: Serious breach declarations 1149. This item would provide that, if any application is made under existing section 234 (Applications for serious breach declarations) of the FW Act before the commencement of Part 18 of Schedule 1, the relevant provisions for dealing with serious breach declarations would continue to apply to that application as if the amendments in Part 20 of Schedule 1 had not been made. Clause 70: Intractable bargaining declarations 1150. This item would allow the FWC to consider conduct engaged in by parties during bargaining prior to the commencement of the amendments in this part when, for example, considering whether it is: • satisfied, for the purpose of new paragraph 235(2)(a), that the applicant has participated in the FWC's processes to deal with the dispute under existing section 240; or Fair Work Legislation 202 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions • satisfied there is no reasonable prospect of agreement being reached for the purpose of new paragraph 235(2)(b); or • satisfied under new paragraph 235(2)(c) that it is reasonable in all the circumstances to make the declaration. Division 15 - Amendments made by Part 19 of Schedule 1 to the amending Act Clause 71: Industrial action 1151. Subsection 1 of the application Part provides that the amendments proposed by Division 1 of Part 19 of Schedule 1 would not apply in relation to employee claim action if written notice under section 414 was given before the commencement of that Division. Section 414 requires written notice to be given before protected industrial action can be undertaken. If written notice had been given before the commencement of Division 1 then employees would have 30 days in which to commence protected industrial action rather than being able to take protected industrial action over the new 3-month period. 1152. Subsection 2 of the application Part provides the amendments of sections 437 and 440 made by Division 2 of Part 19 of Schedule 1 would apply to an application made under subsection 437(1) of the FW Act on or after the commencement of that Division. From commencement, an application for a PABO would require the name of the person or entity the applicant wishes to conduct the PAB, rather than having the AEC as the default PAB agent. 1153. Subsection 3 of the application Part provides the remainder of the amendments proposed by Division 2 of Part 19 of Schedule 1 would apply to a PABO if the application for the order is made under subsection 437(1) on or after the commencement of that Division. 1154. Subsection 4 of the application Part provides the amendment of subsection 413(2) made by Division 3 of Part 19 would apply to industrial action if notice of industrial action is given under the relevant subsections 414(1) (notice requirements for an employee claim action) or 414(4) (notice requirements for an employee response action) or paragraph 414(5)(a) (notice requirements for an employer response action) on or after the commencement of Division 3 of Part 19 of Schedule 1. 1155. Subsection 5 of the application Part provides that the amendment of paragraph 437(2)(b) would apply in relation to an application under subsection 437(1) on or after commencement of Division 3 of Part 19 of Schedule 1. Accordingly, from commencement parties bargaining for a single interest employer agreement or a supported bargaining agreement could apply for a PABO. 1156. Subsection 6 of the application Part provides that the amendments of Part 3-3 made by Division 4 of Part 19 of Schedule 1 apply in relation to employee claim action if the application for the PABO is made under subsection 437(1) on or after the House of Representatives 203 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions commencement of that Division. The amendments proposed by Division 4 would introduce a minimum 120 hours' notice period before industrial action can commence for employees bargaining for a single interest employer agreement or a supported bargaining agreement. 1157. Subsection 7 of the application Part provides that the amendments of Part 3-3 made by Division 5 of Part 19 of Schedule 1 apply in relation to a PABO if the application is made under subsection 437(1) on or after the commencement of that Division. The amendments proposed by Division 5 would introduce a compulsory conference between the parties during the PAB period. If an application is made for a PABO after commencement, then the compulsory conference provisions would apply. Division 16 - Amendments made by Part 21 of Schedule 1 to the amending Act Clause 72: Variation of single interest employer agreement to add employer and employees 1158. This clause would provide that new Subdivision AD of Division 7 of Part 2-4 (applications by employers or employee organisations to vary an existing single interest employer agreement to add a new employer and employees) applies in relation to variations of single interest employer agreements on or after commencement of Part 21 of Schedule 1 to the amending Act, if the agreements were made after that commencement. 1159. It is not intended that applications could be made under these new provisions to add new employers and their employees to agreements made subject to a single interest employer authorisation prior to the commencement of these reforms. Clause 73: Application to existing applications for declarations 1160. This clause would provide that, where applications for Ministerial declarations had been made under section 247(1) of the FW Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act, and the Minister had not made a decision on the application immediately before that commencement, the application for a Ministerial declaration is taken to never have been made, as it would be otiose from that point. 1161. If an application had been made for a Ministerial declaration under section 247(1) or an application for a single interest employer authorisation under section 248(1) had been made prior to the commencement of Part 21 of Schedule 1 to the amending Act but were refused, there is nothing to prevent a new application from being made under for a new single interest employer authorisation under the new provisions on or after the commencement time. Fair Work Legislation 204 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions Clause 74: Application to existing Ministerial declarations where application for authorisation not made 1162. Subclause (1) of this clause would make clear that this clause applies where a Ministerial declaration under subsection 247(1) of the Fair Work Act is made before the commencement of Part 21 of Schedule 1 to the amending Act; and prior to that commencement, two or more of the employers to whom the Ministerial declaration relates had not yet applied to the FWC for a single interest employer authorisation. 1163. Subclause (2) would make clear that if, after the commencement of Part 21 of Schedule 1 to the amending Act, those employers apply for a single interest employer authorisation, then, despite amendments to Division 10 of Part 2-4 of the FW Act made by Part 21 of Schedule 1 of the amending Act, the existing Division 10 would continue to apply in relation to the application for authorisation as if the amendments to Division 10 had not been made. This preserves the status quo for those employers that have obtained a Ministerial declaration but not yet made an application to the FWC for an authorisation. Clause 75: Application to existing applications for authorisations 1164. Subclause (1) would make clear that this clause applies in relation to applications for single interest employer authorisations made under subsection 248(1) of the FW Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act, where the FWC has not yet decided that application. Despite the amendments to Division 10 of Part 2-4 of the FW Act made by Part 21 of Schedule 1 to the amending Act, the existing Division 10 would continue to apply as if the amendments to Division 10 had not been made. This preserves the status quo for those employers that have made an application to the FWC for an authorisation but that application has not been determined prior to commencement of Part 21 of Schedule 1 to the amending Act. Clause 76: Effect of making a single interest employer authorisation 1165. This clause would provide that new section 249A (effect of making a single interest employer authorisation) would apply in relation to single interest employer authorisations on or after the commencement of Part 21 of Schedule 1 to the amending Act, whether the authorisation was made before, on or after that commencement. Clause 77: Application to existing applications to vary authorisations 1166. This clause would provide that section 251 (as amended by Part 21 of Schedule 1 to the amending Act) applies in relation to applications to vary single interest employer authorisations made before the commencement of that Part (if the application has not been decided before that commencement) and on or after that commencement, whether the single interest employer authorisation to which the variation relates was made before, on or after that commencement. House of Representatives 205 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions Clause 78: Effect upon single interest employer authorisations of certain orders 1167. This item would provide that new section 252A (effect upon single interest employer authorisations of an order excluding a person for a proposed agreement) applies in relation to single interest employer authorisations on or after the commencement of Part 21 of Schedule 1 to the amending Act, whether the authorisation was applied for or made before, on or after that commencement. Division 17 - Amendments made by Part 23 of Schedule 1 to the amending Act Clause 79: Order excluding a person for the purposes of an enterprise agreement 1168. New clause 79 would allow the FWC to consider, in the 18 month period before an application for an exclusion order under section 178C, any court findings that the relevant person has contravened a civil remedy provision of this Act or committed an offence against this Act, whether a finding was made before, or after, the commencement of the section. This means that a person could, from the moment of commencement, be subject to an order for exclusion provided that the criteria were met. Clause 80: Approval of cooperative workplace agreement--requirement relating to representation 1169. New clause 80 would provide that the requirement in new subsection 186(2A) that the FWC be satisfied in relation to bargaining for a cooperative workplace agreement that is not a greenfields agreement, that at least some of the covered employees were represented by an employee organisation, would apply only to cooperative workplaces agreements made after commencement of that new subsection. It is not intended that these requirements apply to agreements made before commencement of new subsection 186(2A). Clause 81: Variation of cooperative workplace agreement to add employer and employees 1170. New clause 81 would provide that Subdivision AC of Division 7 of Part 2-4 of the amended Act, which sets out an approval process to vary a cooperative workplace agreement to add employers and affected employees, would apply in relation to a variation of the agreement if the agreement was made after the commencement of that Subdivision. It is not intended that the new provisions apply to agreements made before commencement of new Subdivision AC of Division 7 of Part 2-4. Division 18 - Amendments made by Part 24 of Schedule 1 to the amending Act Item 82 Small claims procedure 1171. This item provides that the proposed increase to the small claims cap referred to in existing subsection 548(2) and related amendments would apply in relation to small claims proceedings commenced on or after commencement of Part 24 of Schedule 1 to Fair Work Legislation 206 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions the Bill. That is, the later of the day the Amending Act receives the Royal Assent and 1 July 2023. 1172. This item also provides that the proposed rules for the recovery of court filing fees in small claims proceedings apply in relation to proceedings commenced after commencement of Part 24 of Schedule 1, and also proceedings that are incomplete (i.e. commenced but not finally determined) at that time. Division 19 - Amendments made by Part 25 of Schedule 1 to the amending Act Item 83 Employment advertisements 1173. This item would give employers one month from commencement of Part 25 of Schedule 1 to ensure that their advertising complies with the new requirements for employment advertisements. That is whether the employment was first advertised before, on or after that day. Division 2 - Consequential amendments relating to multiple measures dealing with variation of enterprise agreements Amendments to the Fair Work Act 2009 Item 661: Section 12 (definition of affected employees) Item 662: Section 12 (definition of made) 1174. Section 12 of the FW Act contains the Dictionary. These items would amend section 12 by: • Repeal the definition of 'affected employees' and inserting a new definition with the following meaning: o new paragraph (a) into the definition of 'affected employees' to signpost the definition in subsection 207(2) for a variation of an enterprise agreement made under Subdivision A of Division 7 of Part 2-4; and o inserting new paragraph (b) into the definition of 'affected employees' for a variation of an enterprise agreement made under Subdivisions AA, AB or AC of Division 7 of Part 2-4; and o inserting new paragraph (c) into the definition of 'affected employees' to define affected employees for a variation of a single interest employer agreement to add a new employer and its employees under new paragraphs 216D(1)(b) and 216DB(1)(b); and o inserting new paragraph (e) into the definition of 'affected employees' for a variation of a single interest employer agreement or multi-enterprise House of Representatives 207 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

Part 26 - Application, saving and transitional and miscellaneous consequential provisions agreement to remove an employer and employees to signpost the definition in new paragraph 216E(1)(b); • Repeal the definition of 'made' and inserting a new definition with the following meaning: o inserting new paragraph (a) into the definition of 'made' to signpost the definition in section 182 in relation to an enterprise agreement; and o inserting new paragraph (b) into the definition of 'made' to signpost section 209 for a variation of an enterprise agreement by employers and employees made under Subdivision A of Division 7 of Part 2-4; and o inserting new paragraph (c) into the definition of 'made' to signpost new subsection 216A(4) for a variation of a supported bargaining agreement to add employer and employees (with consent) made under Subdivision AA of Division 7 of Part 2-4; and o inserting new paragraphs (d) into the definition of 'made' to signpost new subsection 216C(4) for a variation of a cooperative workplace agreement to add employer and employees made under Subdivision AC of Division 7 of Part 2-4; and o inserting new paragraphs (e) into the definition of 'made' to define when a variation of a single interest employer agreement to add a new employer and its employees is made under new subsection 216D(5); and o inserting new paragraph (f) into the definition of 'made' to signpost new subsection 216E(7) for a variation of a single interest employer agreement or multi-enterprise agreement to remove employer and employees (with consent) made under Subdivision AE of Division 7 of Part 2-4. Fair Work Legislation 208 House of Representatives Amendment (Secure Jobs, Better Pay) Bill 2022

Part 27 - Amendment of the Safety, Rehabilitation and Compensation Act 1988 PART 27--AMENDMENT OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 Item 665: after paragraph 5(11)(e) 1175. Subsection 5(11) of the SRC Act specifies persons taken to be employed by the Australian Capital Territory for the purposes of the SRC Act. This item amends subsection 5(11) to add paragraph (ea), which confirms that members of the ACT Fire and Rescue Service, as defined by the Emergencies Act 2004 (ACT), are to be taken to be employed by the Australian Capital Territory for the purposes of the SRC Act. Item 666: Subsection 7(8) (tale item 12, column headed "Qualifying period") Item 667: Subsection 7(8) (after table item 12) 1176. Subsection 7(8) of the SRC Act provides that, if an employee suffers from a disease prescribed by the table in subsection (8) and, before the disease was sustained, the employee was employed as a firefighter for the prescribed qualifying period and was exposed to the hazards of a fire scene during that period, that employment is taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established. 1177. These items amend the table included at subsection 7(8) of the SRC Act to: • reduce the prescribed qualifying period for oesophageal cancer from 25 years to 15 years; and • add a new prescribed disease and qualifying period for the purposes of subsection 7(8), being malignant mesothelioma with a qualifying period of 15 years. Item 668: Paragraph 7(9)(c) 1178. This item removes the phrase '(disregarding the effect of any declarations under subsection 5(15))' from paragraph 7(9)(c) of the SRC Act so as to allow the deeming provisions in subsection 7(8) of the SRC Act to extend to persons taken to be employed by the Australian Capital Territory by operation of a declaration made under subsection 5(15) of the SRC Act. Item 669: Application of amendments 1179. This item provides that: • the amendment to Item 12 of the table in subsection 7(8) of the SRC Act applies in relation to primary site oesophageal cancer sustained by an employee on or after 4 July 2011; and • Item 12A of the table in subsection 7(8) of the SRC Act applies in relation to malignant mesothelioma sustained by an employee after the commencement of the amending Act House of Representatives 209 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

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