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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK LEGISLATION AMENDMENT
(SECURE JOBS, BETTER PAY) BILL 2022
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Hon Tony Burke MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
HOUSE OF REPRESENTATIVES
CONTENTS
OUTLINE ............................................................................................................................................................. iii
FINANCIAL IMPACT STATEMENT ............................................................................................................. iv
REGULATION IMPACT STATEMENT .......................................................................................................... v
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ................................................................ vi
NOTES ON CLAUSES ........................................................................................................................................ 1
PART 1--ABOLITION OF THE REGISTERED ORGANISATIONS COMMISSION ................................. 5
PART 2--ADDITIONAL REGISTERED ORGANISATIONS ENFORCEMENT OPTIONS ..................... 21
PART 3--ABOLITION OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION .. 25
PART 4--OBJECTS OF THE FAIR WORK ACT ........................................................................................ 61
PART 5--EQUAL REMUNERATION .......................................................................................................... 64
PART 6--EXPERT PANELS ......................................................................................................................... 67
PART 7 --PROHIBITING PAY SECRECY .................................................................................................. 74
PART 8--PROHIBITING SEXUAL HARASSMENT IN CONNECTION WITH WORK .......................... 76
PART 9--ANTI-DISCRIMINATION AND SPECIAL MEASURES ........................................................... 95
PART 10--FIXED TERM CONTRACTS ...................................................................................................... 99
PART 11--FLEXIBLE WORK .................................................................................................................... 107
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 .................................................................................................... 134
PART 16--BETTER OFF OVERALL TEST ............................................................................................... 137
PART 17--DEALING WITH ERRORS IN ENTERPRISE AGREEMENTS ............................................. 143
PART 18--BARGAINING DISPUTES ....................................................................................................... 145
PART 19--INDUSTRIAL ACTION ............................................................................................................ 153
PART 20--SUPPORTED BARGAINING ................................................................................................... 160
PART 21--SINGLE INTEREST EMPLOYER AUTHORISATIONS ........................................................ 173
PART 22--VARYING ENTERPRISE AGREEMENTS TO REMOVE EMPLOYERS AND THEIR
EMPLOYEES ................................................................................................................................................ 194
PART 23--COOPERATIVE WORKPLACES ............................................................................................. 196
PART 23A - EXCLUDED WORK ............................................................................................................... 202
PART 24--ENHANCING THE SMALL CLAIMS PROCESSES............................................................... 204
PART 25--PROHIBITING EMPLOYMENT ADVERTISEMENTS WITH PAY RATE THAT WOULD
CONTRAVENE THE ACT ........................................................................................................................... 206
PART 25AA - HAVING REGARD TO CERTAIN ADDITIONAL MATTERS IN PERFORMING
FUNCTIONS ................................................................................................................................................. 209
PART 25A - ESTABLISHMENT OF THE NATIONAL CONSTRUCTION INDUSTRY FORUM ......... 210
PART 26--APPLICATION, SAVING, TRANSITIONAL AND MISCELLANEOUS CONSEQUENTIAL
PROVISIONS ................................................................................................................................................ 213
PART 27--AMENDMENT OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988
....................................................................................................................................................................... 225
Outline
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 (FWO) 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
(FWC).
• 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 FWC 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 equality 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.
• Establishing a National Construction Industry Forum as a statutory advisory body.
• Updating the workers' compensation presumptive liability provisions for
firefighters in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
• Requiring the FWC and FWO (in exercising their advisory and related functions) to
have regard to the need for guidelines and other materials and community outreach
in multiple languages.
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Financial Impact Statement
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.
The financial impact of the National Construction Industry Forum is yet to be determined in
consultation with the Department of Finance, and any other associated departments, and once
agreed will be included in the relevant appropriation bills.
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Regulation Impact Statement
REGULATION IMPACT STATEMENT
The enterprise bargaining outcomes regulation impact statement is attached at the end of this
explanatory memorandum.
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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 inequality 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);
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• 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 equality 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 equality in the modern awards objective. It would also amend
section 284 to include the promotion of gender equality 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.
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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 and the Commonwealth may be vicariously liable for acts of defence members.
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.
15. State and Territory laws dealing with sexual harassment would be able to operate
concurrently with the new provisions prohibiting sexual harassment in connection with
work. This includes State and Territory anti-discrimination, workplace relations,
occupational health and safety, and criminal laws.
Anti-discrimination and special measures
16. 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.
17. 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
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to achieve equality' are not discriminatory terms and therefore not unlawful terms in an
enterprise agreement.
Fixed term contracts
18. 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.
19. 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
20. 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.
21. 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.
22. 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
23. 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'
24. 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.
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Enterprise agreement approval
25. 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.
26. 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).
27. 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.
28. 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.
29. The intention is to simplify the pre-approval requirements, while retaining sufficient
safeguards for employees.
Initiating bargaining
30. 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 single-enterprise 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
31. 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
32. 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.
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Bargaining disputes
33. 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
34. The Bill would promote efficiencies through the establishment of a panel of ballot
providers who are 'pre-approved' to conduct Protected Action Ballots (PAB).
35. 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.
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.
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.
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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 or single-interest employer 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 multi-enterprise
agreement that is not a greenfields agreement cannot cover employees in relation to the
performance of certain types of excluded work. A new legislative scheme would also
be introduced to allow employers and employees not covered by a particular
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cooperative workplace agreement to become covered under an existing agreement upon
successful application to the FWC.
Excluded work
47. Part 23A would introduce a scheme precluding multi-enterprise agreements from
covering employees in relation to the performance of certain types of work.
48. Work in the industry of "general building and construction" as defined in the Building
and Construction General On-Site Award 2020 (with carve-outs defined by reference to
a number of other modern awards) would be excluded from coverage by multi-
enterprise agreements.
Enhancing the small claims process
49. 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
50. 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.
Having regard to certain additional matters in performing functions
51. Part 25AA would require the FWC and FWO (in exercising their advisory and related
functions) to have regard to the need for guidelines and other materials and community
outreach in multiple languages.
Workers' compensation presumptions for firefighters
52. 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). A volunteer
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firefighter will be taken to be employed as a firefighter during any period in which
they were a member of a firefighting service.
53. The Bill would also repeal the requirement that firefighting and related activities form a
substantial part of the duties in order to be taken to be employed as a firefighter, and
substitute a new requirement that if firefighting and related activities form any part of
the duties (or the volunteer activities that are subject to a declaration under subsection
5(15)) that person will be taken to be a firefighter.
54. 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
55. 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:
• 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;
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• 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).
56. 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.
Rights to work and rights in work
57. 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.
58. 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.
59. There can also be no discrimination in access to and maintenance of employment on the
grounds enumerated in Article 2(2) of the ICESCR.
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.
Objects of the Fair Work Act
61. The Bill would amend Part 1-1 of the FW Act to include job security and gender
equality in the object of the FW Act. The FWC would be required to take the objects
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into account when performing functions or exercising its powers under the FW Act
(existing section 578(a)).
62. In addition, Part 4 would amend the modern awards objective to include a new
requirement for the FWC to consider job security and gender equality 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 equality when exercising its powers in relation to minimum
wages.
63. 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 equality in exercising its powers in setting the
conditions of work under modern awards. In particular, the objective of gender equality
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.
Equal remuneration
64. 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.
65. 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.
66. 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
67. 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
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equity matters are presided over by an Expert Panel that includes a majority of FWC
members with specialist skills and knowledge.
Prohibiting pay secrecy
68. 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
69. 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.
70. 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
sexual harassment where it occurs in connection with work through quick and
inexpensive processes.
71. 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.
72. 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
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provisions, with approval of the Minister for Employment and Workplace Relations
(Minister).
73. 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.
74. 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
• achieve that legitimate objective in a proportionate and reasonable way.
75. 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.
76. 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
77. 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.
78. 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.
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79. 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.
80. 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
81. 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.
82. 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.
83. 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
84. The Bill would support employees experiencing family and domestic violence to access
flexible working 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.
85. The amendments would also promote favourable conditions of work by enhancing the
obligations of employers to consider requests for flexible working 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
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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
86. 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.
87. 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.
88. 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),
but safeguards added to preserve employees' termination entitlements that are more
favourable than those in the award.
89. For these reasons, this Part engages these rights positively.
Sunsetting of "zombie" agreements etc.
90. 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.
91. 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.
92. 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.
93. 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
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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
94. The amendments to simplify 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 for multi-enterprise agreements.
95. This may engage the right to just and favourable conditions of work and the right to
freedom of association and collective bargaining.
96. 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.
97. The requirements in relation to the NERR would also be retained in the case of single
enterprise agreements.
98. 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
99. Allowing parties to initiate bargaining for a replacement single-enterprise 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
100. 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
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covered by an enterprise agreement are better off overall in comparison to the relevant
modern award.
101. 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.
102. 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
interpret enterprise agreements, lead to future legal disputes if poorly drafted and cause
delays in the agreement commencing.
103. 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.
104. 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
105. 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.
106. 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
107. 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
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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.
108. 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.
Supported bargaining
109. 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.
110. 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.
111. 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.
112. 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
113. 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
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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.
114. 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.
115. 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.
116. 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
117. By Part 22 of Schedule 1, the FWC would be empowered (upon application) to vary
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).
118. 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.
Having regard to certain additional matters in performing functions
119. This measure would promote the right to just and favourable conditions of work by
requiring the FWC and FWO to (in exercising their advisory and related functions)
have regard to the need for guidelines and other materials and community outreach in
multiple languages. Making resources, information and services available in multiple
languages helps more workers from linguistically diverse backgrounds understand their
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workplace rights and obligations in Australia, so reducing the risk of misinformation
and exploitation.
Enhancing the small claims processes
120. 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
121. 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
provides payment of wages and medical costs to employees for injuries occurring as a
result of their employment.
122. 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
123. 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; by
allowing coverage of the presumptive provisions to extend to volunteer firefighters of
the Australian Capital Territory, by reducing the requirement that firefighting and
related activities form a substantial part of the duties to any part of the duties, and
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].
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clarifying that a person is taken to be employed as a firefighter during any period in
which they were a member of a firefighting service.
124. 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
125. 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
126. 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
127. As noted in the Respect@Work Report, sexual harassment in the workplace can have
significant negative effects on an individual's health and wellbeing.
128. 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
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
129. 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.
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130. 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
131. 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.
132. The Bill would further promote the right to an effective remedy by enabling an
aggrieved person to seek a remedy from a principal in relation to a contravention by an
employee or agent. A remedy could also be sought from the Commonwealth in relation
to a contravention of the new prohibition on sexual harassment by a defence member.
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 or the
Commonwealth where the principal or the Commonwealth took all reasonable steps to
prevent the sexual harassment from occurring.
133. 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.
134. The Bill would further support the right to an effective remedy by ensuring that State or
Territory laws that deal with sexual harassment can operate concurrently with the new
sexual harassment jurisdiction in the FW Act. This would ensure that an aggrieved
person could choose the jurisdiction in which they seek a remedy in relation to
workplace sexual harassment. The Bill also includes a note clarifying how any
inconsistencies in orders made under both a State or Territory law and under the FW
Act would be resolved.
Anti-discrimination
135. 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.
136. 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.
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137. 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
138. 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.
139. 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
140. 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 of an employee changes, the FWC can reassess the agreement to
ensure the employee is not worse off.
Criminal process rights
141. 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.
Abolition of the Registered Organisations Commission
142. The Bill engages the right to a fair and public hearing because it would establish an
infringement notice scheme under the Regulatory Powers Act.
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143. 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
144. 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.
145. 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
146. 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.
147. 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.
148. New Part 3-5A would include a vicarious liability provision modelled on section 106 of
the SD Act. The provision would make 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. The
Commonwealth may also be liable if a defence member contravened the new
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prohibition in connection with their service as a defence member. This is necessary to
ensure aggrieved persons can obtain a remedy from a principal, or the Commonwealth,
particularly in circumstances where a remedy could not be obtained from the
perpetrator themselves. The vicarious liability provision is proportionate as it does not
apply if a principal or the Commonwealth proves that it took all reasonable steps to
prevent the contravention.
149. The Bill would preserve the concurrent operation of State and Territory laws dealing
with sexual harassment. This will not expose respondents to a risk of double
punishment. Generally, section 743B, which would be inserted by the Bill, would
prevent multiple applications or complaints being brought under the FW Act and State
and Territory anti-discrimination laws. In addition, Division 4 of Part 4-1 provides rules
governing the interaction between civil and criminal proceedings, and civil double
jeopardy.
Fixed term contracts
150. 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.
151. 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.
152. 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
153. 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.
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154. 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.
Enhancing the small claims processes
155. 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
156. 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
157. 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.
158. 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
159. 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;
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• 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;
• 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.
160. 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.
161. 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.
162. 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?
163. 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
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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).
164. 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
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.
165. 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).
166. 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)).
167. On this basis, the proposed new penalties should not be considered criminal for the
purposes of human rights law.
Right to privacy and reputation
168. 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
169. 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.
170. 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
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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.).
171. 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.
172. 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
173. 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.
174. 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
175. 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.
176. 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.
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177. 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.
178. 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.
179. 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.
180. 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.
181. 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.
182. 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
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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
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.
183. 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.
184. 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
185. 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
186. 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.
187. 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
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handled in accordance with the FWC's privacy obligations under legislation such as the
Privacy Act 1988.
188. Any conference the FWC conducted in a sexual harassment matter would have to held
in private to protect both applicants and witnesses.
The right to freedom of expression
189. 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
190. 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).
191. 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.
192. 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
193. 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.
194. 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
2
PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.12.
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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.
Protected information
195. 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.
196. 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
197. 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.
198. The new prohibition has a clear legal basis which is precise enough to ensure people are
aware of the legal consequences of their actions.
199. 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
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instances of conduct that the legislation appropriately aims to address workplace sexual
harassment.
Right to peaceful assembly
200. 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
201. 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.
202. 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
203. Repealing Chapter 5 (and within it, section 48) would, therefore, promote the right to
freedom of peaceful assembly within well recognised legal limits.
204. 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.
205. 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
206. 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
3
PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.12.
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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
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
207. 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.
208. 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.
209. 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).
210. 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.
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Project agreements
211. 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.
212. 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
213. 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)).
214. 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).
215. 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
216. 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
(section 45D, etc), the common law (for example, the torts of trespass and nuisance)
4
PJCHR, Fourteenth report of the 44th Parliament, October 2014, para 2.8.
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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)).
217. 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
218. The Bill would engage the right to freedom of association by removing the requirement
to provide employees with a prescribed NERR in relation to a proposed multi-
enterprise agreement.
219. 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.
220. 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
221. The proposed amendments to simplify the process for initiating bargaining for a
replacement single-enterprise 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
222. 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.
Industrial action
223. 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
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Statement of Compatibility with Human Rights
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.
224. 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, and longer notice periods (for some types of bargaining)
before industrial action may be taken. The amendments would also enable protected
industrial action to be taken in relation to multi-enterprise agreements, excluding co-
operative workplace agreements and greenfields agreements.
225. 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.
226. The amendments would fix 120 hours as the minimum notice period before protected
industrial action may commence if the proposed enterprise agreement is an eligible
multi-enterprise agreement. This longer period would reflect that these types of
agreements are with multiple enterprises.
Single interest employer authorisations
227. 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 subparagraph 249(1)(b)(i) 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.
228. Items 637 and 638 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.
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229. 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.
230. 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.
231. 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.
Excluded work
232. While work that is general building and construction work is excluded from coverage
by a multi-enterprise agreement (other than a greenfields agreement), this would not in
any way limit the ability of employees who perform general building and construction
work to choose to join a trade union, nor limit the right of the union to represent the
employee in bargaining for a single-enterprise agreement or in dispute resolution
processes.
233. Although the measure limits the ability of workers who perform work in the general
building and construction industry to bargain at the multi-enterprise level, multi-
employer agreements are not necessary or appropriate for that industry. The scope of
the work that has been excluded from coverage has been carefully defined to ensure
that the exclusion is appropriately limited.
234. The Bill also establishes a tripartite National Construction Industry Forum as a
statutory advisory body to advise the government on work related matters in the
building and construction industry giving further opportunities for industry participants
to organise and have their views heard by government.
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The right to collective bargaining
235. 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.
Enterprise agreement approval
236. 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
237. 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
238. Paragraphs 319(7)(e) and 319(8)(d) 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)).
239. 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.
240. 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
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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.
241. 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.
242. 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.
243. 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
244. 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.
245. 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
246. 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
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legislation, particularly the SD Act, which additionally protects the attributes of
breastfeeding, gender identity and intersex status.
247. 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
status. The definitions of 'breastfeeding', 'gender identity' and 'intersex status' would
be modelled on provisions in the SD Act.
248. 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.
249. 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.
250. 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.
251. 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
252. 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
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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.
Supported bargaining
253. 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
254. 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)).
255. 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
256. The Bill would promote Article 11(1) of the CEDAW by requiring the FWC to
consider gender equality 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
257. 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
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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.
258. 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
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
259. 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
260. 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
261. The Bill would positively engage the rights of women in work by providing a broad
protection against sexual harassment in connection with work.
262. 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
263. 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.
264. 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
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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.
The rights of parents and children
265. 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.
266. 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
267. 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.
268. 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
269. 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
270. 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.
271. 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
Fair Work Legislation l Senate
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Statement of Compatibility with Human Rights
or a combination of attributes (of the kind mentioned in subsection 195(1)), Part 9
promotes the right to equality and non-discrimination.
272. 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.
273. 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 equality for the particular
employees has been achieved.
Flexible work
274. 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
275. 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
Senate li Fair Work Legislation
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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(1)) 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)
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Senate liii Fair Work Legislation
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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
Senate 1 Fair Work Legislation
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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
Forum National Construction Industry Forum
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 Senate
Amendment (Secure Jobs,
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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
Senate 3 Fair Work Legislation
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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 Senate
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.
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.
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Amendment (Secure Jobs,
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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 subsection329A(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 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 1 - Abolition of the Registered Organisations Commission
Section 329C--Minister may require reports
19. 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.
20. 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
21. 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.
22. The report is published alongside the report on FWC operations prepared by the
President under section 652 of the FW Act.
23. 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)
24. 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)
25. 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
Senate 7 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 1 - Abolition of the Registered Organisations Commission
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)
26. 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
27. 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)
28. This item would remove the RO Commissioner from the definition of authorised
official.
Item 13: Section 6
29. This item would repeal the definitions of ROC and RO Commissioner.
Item 14: Subsection 28(1A)
Item 15: Subsection 28(1A) (note)
30. 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)
31. 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)
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
32. 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.
33. 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.
34. 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)
35. 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.
36. 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.
37. 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)
38. 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)
39. 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.
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
40. Subsection 184(2) requires the RO Commissioner to hear these applications and any
objections made by relevant members.
41. 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)
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)
42. 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)
43. 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)
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
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)
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)
44. 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)
45. 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)
46. 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
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Part 1 - Abolition of the Registered Organisations Commission
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)
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 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)
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
Item 86: Subsection 265(5)
Item 87: Subsection 266(1)
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)
48. 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)
49. 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)
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 the functions described
in relation to disclosure obligations, restrictions on taking part in making decisions,
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.
Senate 13 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 1 - Abolition of the Registered Organisations Commission
Item 108: Paragraphs 310(1)(a) and (b)
51. Section 310 sets out who may apply for an order in relation to contraventions of civil
penalty provisions.
52. 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)
53. Section 329G sets out when specified information may be disclosed.
54. 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)
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)
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
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)
55. 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)
56. 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)
57. 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.
Item 147: Paragraph 337CC(2)(b)
58. 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)
59. 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)
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Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
Item 154: Paragraph 343A(3)(h)
Item 155: After subsection 343A(3)
Item 156: Section 343B
60. These items would provide for the delegation of certain of the General Manager's
powers and functions under the RO Act.
61. 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.
62. 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.
63. The power to disclose, or authorise the disclosure of information, is restricted to the
General Manager only.
64. 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
Item 160: Section 349
65. 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
66. 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
67. 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.
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Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 1 - Abolition of the Registered Organisations Commission
Item 163: General Manager can require information
68. 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.
69. 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
70. 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.
71. 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.
Item 165: General Manager substituted as party to proceedings
72. 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
73. 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
74. 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.
75. This item supplements, and does not limit, item 164, which enables the continuance of
incomplete processes under the RO Act (subitem 167(9)).
Senate 17 Fair Work Legislation
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Part 1 - Abolition of the Registered Organisations Commission
76. 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.
77. 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));
• 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
78. 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.
79. 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.
Fair Work Legislation 18 Senate
Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
80. 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
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
Senate 19 Fair Work Legislation
Amendment (Secure Jobs,
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Part 1 - Abolition of the Registered Organisations Commission
Item 169: Other matters
81. 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)).
82. 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)).
Item 170: Transitional rules
83. 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.
84. 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.
85. 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 20 Senate
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
86. 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.
87. 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.
88. 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.
89. 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
90. 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
91. This item would insert 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.
Senate 21 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 2 - Additional registered organisations enforcement options
92. 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.
93. 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)
94. 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
95. This item would insert an updated simplified outline for the Chapter.
Item 175: Part 2 of Chapter 10 (heading)
96. 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
97. This item would insert new Parts 3 and 4 at the end of Chapter 10, to make provision
for infringement notices and enforceable undertakings.
98. 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
99. 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 22 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 2 - Additional registered organisations enforcement options
100. New subsection 316A(1) would enable infringement notices to be issued for
contraventions of the provisions listed in the subsection.
101. 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.
102. 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).
103. New subsection 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.
104. 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.
105. New subsection 316A(6) would require such a delegate to comply with any directions
of the relevant chief executive (i.e., General Manager).
106. 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
107. 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
108. 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;
Senate 23 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.
109. An enforceable undertaking may be varied or withdrawn with the consent of the
General Manager, or cancelled by the General Manager.
110. 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.
111. New subsection 316C(2) would make the General Manager the 'authorised person' for
purposes of Part 6 of the Regulatory Powers Act.
112. 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.
113. New subsection 316C(4) would specify the 'relevant courts' for Part 6 of the
Regulatory Powers Act.
114. 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
115. 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 24 Senate
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
116. 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")
117. 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.
118. 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.
119. 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
Item 189: Section 5 (definition of compliance powers)
Item 190: Section 5 (definition of compliance purposes)
Senate 25 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
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
120. 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 4-3 would repeal or amend
provisions that use these defined terms.
121. 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.
122. 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
123. 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.
124. 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 4-3 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
125. 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
Fair Work Legislation 26 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
• 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
126. 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.
127. 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
Bill;
• prepare for the abolition of the ABCC under Division 2 of Part 3 of the Bill; and
• any other functions conferred by the ABC Commissioner by the Bill or another Act.
Item 201: Subsection 19(2)
128. 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)
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)
Senate 27 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
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)
129. 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.
130. 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.
131. 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.
132. 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.
Item 218: Subsection 32A(2)
133. 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 3 would discontinue the Working Group and
terminate the appointment of members of the Working Group and the Chair.
134. 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
135. 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.
Fair Work Legislation 28 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
Item 220: Chapter 3
136. 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.
137. 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.
138. 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.
139. 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.
140. 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.
Item 221: Before paragraph 38(a)
141. 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)
142. 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.
143. 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.
144. 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.
Senate 29 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
145. 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
146. 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.
147. 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.
148. Repealing Chapter 5 would ensure that the same federal workplace relations offences
and penalties apply regardless of the industry a person works in
Item 224: Chapter 6
149. 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.
150. 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.
151. Provisions of the FW Act governing the conduct of employers, employees and
industrial associations and penalties for contraventions of the FW Act would apply 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.
Fair Work Legislation 30 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
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")
152. 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.
153. 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
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
154. 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.
155. 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.
156. 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.
157. 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 protection from liability relating to examination notices (the operation of
which would be preserved by section 7 of the AI Act).
Senate 31 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
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 234: Subsection 70(1)
Item 235: Subsection 70(3)
Item 236: Subsection 70(3) (note)
Item 237: Section 71 (heading)
Item 238: Section 71
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)
Fair Work Legislation 32 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Part 3 - Abolition of the Australian Building and Construction Commission
Item 261: Subsection 75(3)
Item 262: Subsection 76(1)
Item 263: Section 76
Item 264: Subsection 77(1)
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)
158. 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
159. 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.
160. 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).
161. 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
162. 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.
Senate 33 Fair Work Legislation
Amendment (Secure Jobs,
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Part 3 - Abolition of the Australian Building and Construction Commission
163. 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")
Item 273: Section 80 (paragraph beginning "The ABC Commissioner")
164. 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.
165. 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)
166. 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.
167. 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
168. 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.
169. 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
170. 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.
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171. Part 3 of Chapter 8 would be repealed in accordance with the Government's election
commitment to abolish the ABCC.
172. 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")
173. 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
174. 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.
175. 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.
176. 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
177. This item would repeal section 103 of the BCIIP Act to reflect the proposed repeal of
the examination notices regime. Section 103 protects a person from liability for
contraventions of other laws or civil proceedings relating to their compliance with an
examination notice in good faith.
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178. 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)
179. 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.
180. 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.
181. 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.
182. 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.
183. Subsection 105(5) would be repealed as it relates exclusively to disclosures or
authorisations of disclosures of information by the ABC Commissioner.
184. 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.
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Item 299: Section 106
185. 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).
186. 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)
187. 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
188. 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).
189. 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.
Item 302: Section 117
190. 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
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Transitional Act to give undertakings as to damages as a condition of granting an
interim injunction.
191. 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)
192. 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.
193. 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
194. 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.
195. 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.
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
196. This item would amend the long title of the BCIIP Act to reflect changes in the purpose
of the legislation.
Item 308: Section 1
197. 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.
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198. 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.
199. 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
200. 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.
201. 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.
202. 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.
203. 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.
204. 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.
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Part 3 - Abolition of the Australian Building and Construction Commission
Item 311: Section 107
205. 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.
206. 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)
207. 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.
208. 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.
209. 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.
210. 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)
211. 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
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would change the scope rather than the meaning of the definition, as a result of the
changes to the scope of the BCIIP Act.
212. This item is consequential to amendments made by this Part.
Item 314: Subparagraphs 337A(1)(b)(iii), (iiia) and (iv)
213. 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.
214. 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.
215. 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)).
Amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987
Item 315: Paragraph 4(4)(aba)
216. This item would amend paragraph 4(4)(aba). Section 4 sets out circumstances in which
courts are prescribed additional jurisdiction to handle civil claims.
217. 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
218. 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.
219. 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
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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
220. This item would repeal the whole BCI C&T Act as amendments made by Part 3 would
mean the BCI C&T Act is no longer required.
Division 5 - General transitional provisions
Item 318: Definitions
221. 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-
search/view/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUu
d2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAxNy81L2FlND
I0MjYzLnBkZg2/3/3e7724ea-b7aa-43c2-972a-
cf2d6b44dcd2/Application%24%24Australian%24%24Building%24%24Constructi
on%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
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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
222. 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.
223. 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.
224. 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).
225. 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;
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• 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.
226. It would also provide for termination payments of SES employees and consultants.
Scope
227. 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.
228. 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
229. 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
230. 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.
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231. 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).
232. 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.
233. 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 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
234. 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.
235. 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.
236. 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.
237. 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
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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
238. 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.
239. 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
the person is entitled to redundancy pay under the NES) plus the employee's
entitlement to redundancy pay under the NES.
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 accepted voluntary redundancy and notice 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 (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.
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 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.
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Notional involuntary redundancy amount
244. 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.
245. 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
246. 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:
• four weeks of the person's pay; or
• 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.
247. 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
248. 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.
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Redundancy benefit
249. 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
250. 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;
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
251. 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
252. 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.
253. 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.
254. 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.
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The FWO would make these payments on behalf of the Commonwealth, given the
ABCC would be abolished at this time.
255. 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
256. 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.
257. 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
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
258. 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.
259. 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
260. 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.
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261. 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.
262. 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.
Item 324: Fair Work Commission proceedings etc.
263. 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.
264. 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.
265. 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.
266. 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.
267. 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
268. 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).
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269. 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.
270. 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.
271. 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.
272. 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.
273. 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.
274. 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
275. 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.
276. 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
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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.
277. 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,
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).
278. 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
279. 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.
280. 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
281. 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.
282. 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.
283. 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
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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.
284. 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
285. 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.
286. 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.
287. 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.
288. 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.
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289. 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
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.
290. 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.
291. 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.
292. 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.
293. 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.
294. 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
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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.
295. 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
296. 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).
297. 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.
298. 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.
299. Items 202 to 217 would remove the requirement for the ABC Commissioner to prepare
a quarterly report after the transition time.
300. 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.
301. 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.
302. 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.
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Part 3 - Abolition of the Australian Building and Construction Commission
Item 332: Report to Parliament by Commonwealth Ombudsman
303. 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.
304. 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
305. Part 3 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
306. 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.
307. 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.
Item 336: Information provided to the Fair Work Ombudsman before the transition
time
308. 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,
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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.
309. 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
310. 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.
311. 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.
312. 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
313. These items would provide for the transfer of assets and liabilities held by the ABCC
before and at the ABCC abolition time.
314. 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.
315. 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
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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
316. 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.
317. 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
318. Subparagraphs 337A(1)(b)(iii), (iiia) and (iv) of the RO Act concern disclosures by
whistleblowers and list which disclosures would be protected.
319. 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
320. 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 3 would make the FWO responsible for without impacting the resources
it requires for undertaking its other functions.
321. 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 3, including in relation to making payments it would be required to make.
Item 343: Compensation for acquisition of property
322. 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 3.
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Part 3 - Abolition of the Australian Building and Construction Commission
Item 344: No limitation of subsection 7(2) of the Acts Interpretation Act 1901
323. This item would provide that this Division of Part 3 does not operate to limit
subsection 7(2) of the AI Act.
324. 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.
325. 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
326. 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.
327. 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
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.
328. 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;
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• 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.
329. 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.
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Part 4 - Objects of the Fair Work Act
PART 4--OBJECTS OF THE FAIR WORK ACT
Overview
330. This Part would introduce job security and gender equality 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.
331. 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.
332. This Part would also introduce improved access to secure work and gender equality 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 equality 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)
333. 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
equality as considerations.
334. 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 equality
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. The intention of the references to 'gender equality' in each of
these provisions is to use language that is consistent with the Convention on the
Elimination of All Forms of Discrimination against Women and ILO Convention
concerning Discrimination in Respect of Employment and Occupation (No 111). It is
also intended to reflect the policy objective of both formal and substantive gender
equality.
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Part 4 - Objects of the Fair Work Act
335. Job security and gender equality 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)).
Item 347: After paragraph 134(1)(a)
336. The existing subsection 134(1) sets out the modern awards objective, which 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.
337. 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 equality 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)).
338. 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)
339. 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)
340. 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.
341. This item would amend the minimum wages objective to require the FWC to also take
into account the need to achieve gender equality, including by ensuring equal
remuneration for work of equal or comparable value, eliminating gender-based
undervaluation of work and addressing gender pay gaps.
342. 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
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Part 4 - Objects of the Fair Work Act
modern awards) as far as it relates to modern award minimum wages (existing
subsection 284(2)).
Item 350: Paragraph 284(1)(d)
343. 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).
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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)
344. 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)
345. 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).
346. 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.
347. 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)
348. 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].
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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)
349. 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.
350. 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.
351. 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.
352. 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)
353. 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.
354. 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].
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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)
355. 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)
356. 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.
357. 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
358. 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.
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Part 6 - Expert panels
PART 6--EXPERT PANELS
Overview
359. 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.
360. 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 359: At the end of subsection 302(1)
361. 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.
362. 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)
363. Paragraph 575(2)(d) provides that the FWC consists of 6 Expert Panel members.
364. 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.
365. 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)
366. 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.
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Part 6 - Expert panels
367. 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)
368. 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.
369. 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)
370. 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.
371. Subsection 616(3D) provides that the President may direct a single FWC member to
make a determination varying a modern award in certain circumstances.
372. 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
• a determination made under subsection 157(2) relating to the Care and Community
Sector,
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Part 6 - Expert panels
must be made by an Expert Panel constituted for the purpose of deciding whether to
make that determination or modern award.
373. 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)
374. 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.
375. 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
376. 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.
377. The item would add a note after each subsection indicating the relevant constitution for
an Expert Panel for the relevant purpose.
378. 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.
379. 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
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Part 6 - Expert panels
under section 159, 160 or 161 relating to other variations of modern awards to perform
the function or exercise the power.
380. 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.
381. 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
382. 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.
383. New section 617A has been drafted to closely match the language in section 290 of the
FW Act.
384. It is intended that a direction may encompass broad matters, rather than being restricted
to a matter before an Expert Panel.
385. This item would include a note to 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
386. 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.
387. 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)
388. 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).
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Part 6 - Expert panels
Item 374: After subsection 620(1A)
389. 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.
390. 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.
391. 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.
392. 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.
393. The President may determine whether a full time FWC member appointed to an Expert
Panel has the relevant knowledge or experience.
394. 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)
395. 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)
396. 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.
397. 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.
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398. 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)
399. 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).
400. 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)
401. 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).
402. 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
403. 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).
404. 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
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.
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Item 381: At the end of subsection 627(4)
405. 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.
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Part 7 - Prohibiting pay secrecy
PART 7 --PROHIBITING PAY SECRECY
Amendments to the Fair Work Act 2009
Item 382: Section 321 (after the paragraph beginning "Division 3")
406. 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 383: In the appropriate position in Part 2-9 of Chapter 2
407. 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
408. 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.
409. 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.
410. 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).
411. 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.
412. 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
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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.
413. 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
414. 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.
415. 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
416. 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).
417. 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)
418. 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.
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PART 8--PROHIBITING SEXUAL HARASSMENT IN CONNECTION WITH
WORK
Overview
419. 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 and the
Commonwealth may be liable for acts of defence members.
420. 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.
421. 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.
422. 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.
423. Part 8 would also insert anti-double dipping provisions to prevent a person from
obtaining multiple remedies in relation to the same conduct.
424. 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).
425. New Part 3-5A would preserve the concurrent operation of State and Territory laws
dealing with sexual harassment, including anti-discrimination laws, occupational health
and safety laws and criminal laws.
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Division 1--Main amendments
Amendments to the Fair Work Act 2009
Item 385: After subsection 6(6)
426. 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
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)
427. 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.
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Item 388: Section 12
Item 390: Section 12
Item 392: Section 12
428. These items would insert the following signpost definitions into the Dictionary at
section 12 of the FW Act:
• 'aggrieved person' and 'respondent' 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)
429. 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
430. 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
431. 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
432. 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.
Clause 527C - Object of this Part
433. 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
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Part 3-5A is supported by the external affairs power in reliance on the treaties listed in
clause 527C.
Clause 527CA - Concurrent operation of State and Territory laws
434. Clause 527CA is intended to preserve the concurrent operation of State and Territory
laws dealing with sexual harassment and addresses potential interaction issues that may
arise because of section 109 of the Constitution.
435. Section 109 of the Constitution renders inoperative a State law to the extent that it is
inconsistent with a Commonwealth law. If the Commonwealth law is interpreted as
operating to the exclusion of a State law, the State law will be interpreted as
inconsistent with the Commonwealth law. While section 109 of the Constitution does
not apply to Territory laws, similar principles apply in relation to the inconsistency of
Territory laws with Commonwealth laws.
436. Clause 527CA is intended to be used in interpreting the operation and effect of new
Part 3-5A. It would indicate Parliament's intention that State and Territory laws dealing
with sexual harassment can operate concurrently with Part 3-5A. This includes State
and Territory anti-discrimination laws, workplace relations laws, occupational health
and safety laws, and criminal laws.
437. Subclause 527CA(1) would provide that Part 3-5A does not exclude or limit the
operation of a law of a State or Territory that is capable of operating concurrently with
the Part.
438. Subclauses 527CA(2) and (3) would provide examples of State and Territory laws that
could operate concurrently with Part 3-5A, without limiting the general rule in
subclause 527CA(1).
439. Subclause 527CA(2) would clarify that Part 3-5A would not exclude or limit the
concurrent operation of a State or Territory law that makes an act or omission an
offence, or subject to a civil penalty, where that act or omission (or any similar act or
omission) would also constitute a contravention of Part 3-5A. For example, this would
enable the concurrent operation of prohibitions on workplace sexual harassment in
State or Territory anti-discrimination law or State or Territory laws criminalising sexual
assault.
• There are existing provisions that deal with the interaction between civil
proceedings under the FW Act and criminal proceedings under State, Territory or
Commonwealth laws (sections 552-556 of the FW Act).
440. Subclause 527CA(3) would clarify that Part 3-5A does not exclude or limit the
concurrent operation of a State or Territory law that allows an application to be made to
a person, court or body for an order, or any other direction (however described), to
prevent sexual harassment, or to deal with a dispute about sexual harassment. For
example, this would preserve the concurrent operation of State or Territory laws that
enable a tribunal to issue a stop sexual harassment order.
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441. It would be irrelevant whether sexual harassment has a different meaning for the
purposes of the State or Territory law to the meaning used in the FW Act, or whether
the State or Territory law describes the conduct as sexual harassment. For example,
State or Territory laws that deal with sexual harassment would be preserved, even if
they use a different definition of sexual harassment to the definition that applies for the
purposes of the FW Act. State and Territory laws would also be preserved even if they
do not specifically apply to sexual harassment. For example, if sexual harassment also
constitutes bullying, then a State or Territory law allowing orders to be made to prevent
bullying could operate despite Part 3-5A.
442. A new legislative note would alert the reader that new section 734B, which would be
inserted by the Bill, would generally prevent multiple applications or complaints under
both the FW Act and State and Territory anti-discrimination laws in relation to the
same conduct.
443. However, multiple orders covering the same conduct could be made at both the State or
Territory and Commonwealth levels, for example, to stop workplace sexual harassment
from continuing. In that circumstance, another legislative note would alert the reader
that, due to the operation of section 109 of the Constitution, the order made under the
FW Act would prevail to the extent of any inconsistency.
444. Subclause 527CA(4) would clarify that section 26 of the FW Act has effect subject to
clause 527CA. This would indicate Parliament's intention that section 26 does not
exclude State or Territory laws to the extent they are preserved by clause 527CA.
Division 2--Prohibiting sexual harassment in connection with work
Clause 527D - Prohibiting sexual harassment in connection with work
Prohibition
445. 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).
446. 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.
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447. 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.
448. 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.
449. The legislative note would alert the reader that the prohibition of sexual harassment is a
civil remedy provision.
Meaning of worker
450. 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
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
451. 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
452. 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.
453. Clause 527E is modelled on the vicarious liability provision in section 106 of the SD
Act.
Employees and agents
454. 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.
455. 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).
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Defence members
456. Subclause 527E(2A) would make the Commonwealth vicariously liable for any sexual
harassment perpetrated by a defence member (within the meaning of the Defence Force
Discipline Act 1982), in contravention of subclause 527D(1), if the contravention was
done in connection with the person's service as a defence member. This is necessary
because subclause 527E(1) may not apply in relation to contraventions by defence
members due to the special nature of defence service, which is not employment and
also may not be an agency relationship. This ensures consistency with the SD Act,
which provides for the vicarious liability of the Commonwealth for sexual harassment
perpetrated by defence members.
457. Under subclause 527E(2B), the Commonwealth would not be vicariously liable if it
proves that it took all reasonable steps to prevent the contravention.
Other provisions not limited
458. Subclauses 527E(1) and (2A) 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)).
459. Where a principal or the Commonwealth fails to take all reasonable steps to prevent
workplace sexual harassment, it 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
460. 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.
461. 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.
462. 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)):
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• make a stop sexual harassment order under clause 527J;
• otherwise deal with the dispute.
463. This would be called a 'sexual harassment FWC application' (see subsection 734A(3)).
464. 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.
465. 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.
466. 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.
467. 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.
468. 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.
469. Subclause 527F(4) would not limit the FWC's general power to make procedural rules
under section 609.
470. 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:
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• 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.
471. This aligns with the existing framework for stop sexual harassment orders. Other
military justice sanctions may apply where a defence member is sexually harassed.
472. 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.
473. Nothing in the Bill would create an employment relationship between members of the
Defence Force and the Commonwealth.
474. 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
475. 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.
476. 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.
Clause 527H - Application fees
477. Clause 527H is modelled on section 367 of the FW Act.
478. 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.
479. 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.
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Subdivision B--Stop sexual harassment orders
Clause 527J - Stop sexual harassment orders
480. Clause 527J would provide for stop sexual harassment orders to be made under Part 3-
5A.
481. 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.
482. 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.
483. 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.
484. 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
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• any factors the FWC considers relevant.
485. 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.
486. 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.
487. 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
488. 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
489. 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.
490. 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.
491. 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
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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
492. 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
493. 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
494. 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.
Subdivision C--Dealing with sexual harassment disputes in other ways
Clause 527R - Dealing with a sexual harassment dispute (other than by arbitration)
495. Clause 527R is modelled on section 368 of the FW Act.
496. 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.
497. 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.
498. 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
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the reader to section 592 of the FW Act, which provides further rules relating to
conferences.
499. 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.
500. 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.
501. Certain time limits apply (see subparagraph 527S(1)(e)(i) and subsection 527T(3)).
Clause 527S - Dealing with a sexual harassment dispute by arbitration
502. Clause 527S is modelled on section 369 of the FW Act.
503. 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;
• 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.
504. 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).
505. 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.
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506. 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)).
507. 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.
508. 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.
509. 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.
510. 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
511. Clause 527T is modelled on section 370 of the FW Act.
512. 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.
513. 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)).
514. 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
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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.
515. 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).
516. 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.
517. 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.
518. 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.
519. 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.
520. 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)
521. These items would apply the framework for enforcing civil remedy provisions in the
FW Act to relevant provisions in Part 3-5A.
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522. 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).
523. The maximum civil penalty for a contravention would be 60 penalty units.
524. 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.
525. Item 397 would apply the course of conduct rule to contraventions of the prohibition on
sexual harassment in subclause 527D(1).
526. 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)
527. 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.
Item 400: Subsection 587(2)
528. 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.
529. 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.
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Item 401: Subsection 592(3)(note)
530. 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)
531. 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)
532. 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)
533. 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)
534. 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)
535. 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
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.
536. 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.
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Item 410: At the end of Division 3 of Part 6-1
537. 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
538. 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.
539. 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
540. 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.
541. 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-
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.
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Division 2--Amendments relating to ILO Convention (No. 190)
Amendments to the Fair Work Act 2009
Item 424: After paragraph 527C(c)
542. 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)
543. 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.
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Part 9 - Anti-discrimination and special measures
PART 9--ANTI-DISCRIMINATION AND SPECIAL MEASURES
Overview
544. 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.
545. 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
546. This item would insert new definitions of 'breastfeeding', 'gender identity' and
'intersex status' into the Dictionary at section 12 of the FW Act.
547. 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.
548. The definitions of 'gender identity' and 'intersex status' would be by reference to the
definitions in the SD Act.
549. 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)
550. 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.
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• 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.
551. 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
552. 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.
553. 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.
554. 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)
555. 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
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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.
556. 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.
557. 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
558. This item would amend section 195 by inserting new subsections 195(4)-(6) which
define 'special measure to achieve equality'.
559. 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.
560. 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.
561. 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.
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Item 434: Paragraph 771(d)
Item 435: Paragraph 771(d)
562. 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
563. 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).
564. 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.
565. 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.
566. 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.
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Part 10 - Fixed term contracts
PART 10--FIXED TERM CONTRACTS
Overview
567. 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.
568. 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
569. 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
570. This item would insert a new section 141A into the FW Act after current section 141.
Section 141A--Terms permitting fixed term contracts
571. 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).
572. 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.
573. 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.
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574. 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
575. 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
576. 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
577. 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.
578. 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.
579. 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.
580. 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 where :
• the contract continues the same, or substantially similar, employment relationship
and work duties as a previous fixed term contract, and
• either:
o the contract and previous fixed term contract would exceed two years in
length,
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o the contract or previous fixed term contract contains a right of renewal or
extension, or
o the employee has previously been engaged under two consecutive fixed term
contracts.
581. 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).
582. New subsection 333E(5)(d) would prohibit the use of a third or more fixed term
contract where an employee has previously been engaged on two consecutive contracts
for the same or similar work. For the prohibition to apply, there must be substantial
continuity between all three or more of the contracts. The amendment clarifies that the
prohibition applies when the employment relationship exceeds two contracts, even if it
does not also exceed two years in duration.
Section 333F--Exceptions to limitations
583. Clause 333F would provide limited exceptions to the prohibition in clause 333E. An
employer may enter into a contract of employment with an employee that is for longer
than two years, contains more than one option for extension or renewal, or is a third or
more consecutive fixed-term contract 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
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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.
584. 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.
585. 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.
586. 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.
587. 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
588. 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.
589. 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
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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.
590. 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.
591. 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
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.
592. 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
593. 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.
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594. 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
• ends one employee's employment in accordance with the terms of their fixed term
contract, and engages another employee to do the same or similar work, so as to
avoid making the first employee permanent
• 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.
595. In order for this provision to apply the employer must have made the decision so as to
avoid the operation of section 333E.
Subdivision B--Other matters
Section 333J--Fixed Term Contract Information Statement
596. 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
597. 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
598. 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.
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599. 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.
600. 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.
601. 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.
Item 442: Subsection 539(2) (before the table items headed "Part 3-1--General
protections")
602. 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)
603. 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)
604. 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.
605. 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.
606. 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.
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Item 445: After paragraph 576(1)(g)
607. This item would insert new paragraph 576(1)(ga) after paragraph 576(1)(g).
608. 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.
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Part 11 - Flexible work
PART 11--FLEXIBLE WORK
Overview
609. Division 4 of the NES deals with an employee's right to request changes to their
working arrangements (flexible working 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)
610. 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.
611. 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'.
612. '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
proposed in the Fair Work Amendment (Paid Family and Domestic Violence Leave)
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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
613. 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)
614. 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)
615. 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)
616. 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)
617. 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
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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
618. 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
619. 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.
620. 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.
621. 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
• the employer and employee have been unable to reach agreement (new paragraph
65A(3)(b));
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• 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)).
622. 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.
623. 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;
624. 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)).
625. The Note at the end of new subsection 65A(5) would make clear that the size and
nature of the enterprise carried out by the employer is among the specific circumstances
that may be considered when considering whether the employer has reasonable
business grounds for refusing the request. This recognises that what is reasonable to
accommodate may differ significantly between businesses, depending on their
circumstances. The note also provides a relevant example.
626. 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
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circumstances, or stating that there are no such changes the employer is willing to
make (new paragraph 65A(6)(c)); and
• 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
627. 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)
628. 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 section
65 and new section 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 new section 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)
629. 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.
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Item 463: Before section 66
630. 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.
Section 65B - Disputes about the operation of this Division
631. 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)).
632. 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)).
633. 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)).
634. 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
635. 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));
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• 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));
• 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)).
636. 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.
637. In considering whether to make an order, the FWC would be required to take into
account fairness between the parties (new subsection 65C(2)).
638. New subsection 65C(2A) would clarify that the FWC cannot make an order:
• to ensure compliance with the procedural requirements in new section 65A
(proposed new subparagraph 65C(1)(e)),
• that an employer grant a request for flexible working arrangements (proposed new
subparagraph 65C(1)(f)(i)), or
• than an employer make specified changes to an employee's working arrangements
to accommodate their circumstances (proposed new subparagraph 65C(1)(f)(ii)),
that would be inconsistent with a provision of the FW Act or a fair work instrument that
applies to the employee and employer (other than a previous order made by the FWC
under these provisions). This amendment is modelled on existing subsection 739(5),
which applies to FWC consent arbitration.
639. One situation in which this may arise is where a fair work instrument provides for rates
of pay, penalty rates or other conditions that apply to certain patterns of work. An order
of the FWC may not be inconsistent with or less favourable than those provisions. For
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example, an enterprise agreement may provide that firefighters working non-standard
roster patterns get paid at the same rate as firefighters working on a 10/14 shift roster.
An order of the FWC could not provide for a rate of pay for the non-standard roster
pattern that was inconsistent with this requirement.
640. 'Fair work instrument' is defined in section 12 to include a modern award, enterprise
agreement, workplace determination or an FWC order.
641. 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)).
642. 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)).
643. 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)
644. 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)
645. 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.
Item 467: Subsection 545(1) (note 4)
646. 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)
647. 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).
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Item 469: Subsections 739(2) and 740(2)
648. 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.
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Part 12 - Termination of enterprise agreements after nominal expiry date
PART 12--TERMINATION OF ENTERPRISE AGREEMENTS AFTER NOMINAL
EXPIRY DATE
Overview
649. 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
650. 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
651. 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
652. New section 226 would set out when the FWC must (upon application under existing
section 225) terminate an enterprise agreement that has nominally expired.
653. 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.
654. 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:
• 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
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• 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.
655. New subsection 226(1A) would provide that the FWC must terminate the enterprise
agreement under new subsection 226(1) only if satisfied that it is appropriate in all the
circumstances to do so (provided that the criteria in new subsection 226(1) are met).
656. Building this further discretion into the test would better enable the FWC to take into
consideration the views of the parties, the impact on any bargaining for a replacement
agreement that is occurring, and any other relevant matters (in accordance with new
sections 226(3), (4) and (5)).
657. New subsection 226(2) provides this subsection covers terminations on grounds of
redundancy or because of the employer's insolvency or bankruptcy (as defined).
658. 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.
659. A new Note would cross-reference from subsection 226(3) to 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.
660. 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.
661. 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.
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Part 12 - Termination of enterprise agreements after nominal expiry date
662. 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
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
663. 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).
664. 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 new section 226; and
• the employer terminates the employment of a 'protected employee' on the ground
of:
o redundancy (as defined in the section); or
o because of the employer's insolvency or bankruptcy.
665. 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.
666. 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).
667. 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.
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668. 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:
• 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.
669. 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.
670. 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.
671. 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)
672. 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
673. 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.
674. 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:
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• the President had given a direction to a FWC member to start dealing with the
application; and
• 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.
675. 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.
676. 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
677. This item would amend item 16 of Schedule 3 to the FW Transitional Act to clarify that
subsection 615A(3) of the FW 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
678. These items amend item 23 of Schedule 3A to the FW Transitional Act to clarify that
subsection 615A(3) of the FW 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
679. 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
680. New item 29 of Schedule 7 to the FW Transitional Act would clarify that
subsection 615A(3) of the FW Act does not apply in relation to an application for the
termination of an enterprise agreement made during the bridging period.
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Part 13 -Sunsetting of "zombie" agreements etc.
PART 13--SUNSETTING OF "ZOMBIE" AGREEMENTS ETC.
Overview
681. 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
682. 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).
683. These instruments are commonly referred to collectively as 'zombie agreements'.
684. 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
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.
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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
685. 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.
686. 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).
687. 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.
688. 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);
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Part 13 -Sunsetting of "zombie" agreements etc.
Schedule 3A, new subparagraph 26A(6)(b); Schedule 7, new subparagraph 30(6)(b)).
All references are to Schedules to the FW Transitional Act.
689. 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.
690. New subitems 20A(10A)-(10C) of Schedule 3, 26A(10A)-(10C) of Schedule 3A, and
30(9A)-(9B) of Schedule 7 to the FW Transitional Act would:
• require the FWC to publish its decisions to extend (or not extend) a zombie
agreement;
• require the FWC to publish any written reasons in relation to such decisions
(subject to any order restricting the publication of confidential information made
pursuant to section 594 of the FW Act);
• require the FWC to publish the zombie agreement/instrument if the decision is to
extend a collective zombie agreement (i.e. a collective agreement-based transitional
instrument, collective Division 2B State employment agreement, or an enterprise
agreement made during the 'bridging period' from 1 July-31 December 2009);
• provide that the FWC must not publish any individual zombie agreement in relation
to which an application for an extension has been made.
691. In respect of the publication of a collective zombie agreement, the FWC may consider
that the details of signatories to the agreement do not form part of the agreement and
are therefore not required to be published.
692. 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)
693. 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.
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Part 13 - Sunsetting of "zombie" agreements etc.
Item 4C--Compliance with obligation to notify employees about automatic sunsetting
694. 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.
695. 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.
696. 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 identify 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 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.
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Part 14 - Enterprise agreement approval
PART 14--ENTERPRISE AGREEMENT APPROVAL
Overview
697. 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.
698. 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).
699. 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.
700. 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.
701. 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.
702. 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.
703. 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.
704. The FWC would also need to be satisfied that prior to requesting employees to vote for
the agreement, the employer has obtained written agreement from each bargaining
representative that is an employee organisation to make that request.
705. Additionally, the FWC would still need to be satisfied that the employer has
sufficiently explained the terms of the proposed agreement and their effect to the
relevant employees, having regard to their particular needs and circumstances.
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Amendments to the Fair Work Act 2009
Item 487: Section 12 (definition of access period)
Item 488: Section 12 (definition of genuinely agreed)
706. 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)
707. These items would amend section 173 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). 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)
708. 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)
709. 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)
710. Item 495 would substitute the heading to section 180 of the FW Act ("Employees must
be given copy of a proposed enterprise agreement etc") with the words "Certain pre-
approval requirements".
Item 497: Subsections 180(2)-(4)
711. 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:
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• 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.
712. 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 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)
713. 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.
Item 506: Paragraph 180(5)(a)
Item 506A: Paragraph 180(5)(b)
714. Items 506 and 506A would make consequential amendments to the wording of
paragraphs 180(5)(a) and 180(5)(b) of the FW Act to reflect the proposed repeal of
subsection 180(2) of the FW Act which defines "relevant employees".
Item 506B: After section 180
715. Item 506B would insert a new section 180A into the FW Act. New section 180A
applies to a proposed multi-enterprise agreement (i.e. a proposed single interest
employer agreement, supported bargaining agreement or cooperative workplace
agreement).
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716. New section 180A would provide that before requesting employees to approve such an
agreement by voting for it, the employer must obtain written agreement to the making
of the request from each bargaining representative for the agreement that is an
employee organisation.
717. The requirement would not apply to a proposed single-enterprise agreement.
718. Currently, whether an employer's failure to notify or obtain the agreement of
bargaining representatives prior to putting an enterprise agreement to a vote amounts to
a breach of the good faith bargaining requirements in section 228 of the FW Act
depends on the particular circumstances (see, e.g., CFMMEU v Tahmoor Coal Pty Ltd
[2010] FWAFB 3510).
Item 507: Subsection 181(2)
719. 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).
Item 508: Subsection 186(2) (Note 1)
720. This item would amend Note 1 to subsection 186(2) and is consequential upon
amendments to section 188.
Item 509: Section 188
721. This item would repeal section 188 and insert 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.
Statement of principles
722. 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
723. 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
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• are sufficiently representative, having regard to the employees the agreement is
expressed to cover.
724. 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.
725. 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)).
726. 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.
727. 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.
728. 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.
Agreement of bargaining representatives that are employee organisations
729. New subsection 188(2A) would provide that the FWC cannot be satisfied that a multi-
enterprise agreement has been genuinely agreed to by the relevant employees unless it
is satisfied that the employer complied with new section 180A, i.e., unless the employer
obtained the written agreement of bargaining representatives that are employee
organisations to put the agreement to a vote.
Where notice of employee representational rights was required
730. 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
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and not requesting employees to vote on the agreement until at least 21 days after the
last NERR is given.
731. These requirements would only apply in respect of a proposed single-enterprise
agreement (excluding a greenfields agreement).
Explanation of terms of the agreement
732. New subsection 188(4A) would provide that the FWC cannot be satisfied that an
enterprise agreement has been genuinely agreed to unless the FWC is satisfied that the
employer complied with subsection 180(5), which requires the employer to have taken
all reasonable steps to ensure that the terms of the agreement and their effect are
explained to employees in an appropriate manner, taking into account their
circumstances and needs.
Minor errors may be disregarded
733. 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.
734. Following the removal of various detailed pre-approval requirements, this discretion
would now apply to requirements relating to: notices of employee representational
rights and the '21 days rule' for proposed single-enterprise agreements that are not
greenfields agreements (see sections 173, 174 and 181(2)); explaining the terms of a
proposed agreement and their effect to employees (see subsection 180(5)); obtaining
the agreement of certain bargaining representatives to put a multi-enterprise agreement
to a vote (see section 180A); and the making of different kinds of enterprise agreements
by employee vote (see subsections 182(1) and (2)).
Regulations
735. 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)
736. 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
737. 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.
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738. 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)).
739. 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)).
740. 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.
741. 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.
742. 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.
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Part 14 - Enterprise agreement approval
Item 511A: After section 207
Section 207A - Agreement of employee organisations covered by the agreement
743. New section 207A would introduce a requirement for employers to obtain written
agreement from relevant employee organisations prior to requesting employees to
approve a proposed variation of a multi-enterprise agreement under Subdivision A of
Division 7 of the FW Act.
744. New section 207A would provide that before an employer requests (under subsection
208(1)) that employees approve a variation of a multi-enterprise agreement by voting
for it, the employer must obtain written agreement to the making of the request from
each employee organisation covered by the enterprise agreement.
Item 513: Paragraphs 211(3)(d)
Item 513A: Paragraph 211(3)(e)
Item 513B: After paragraph 211(3)(f)
Item 514: After paragraph 211(3)(g)
Item 515: Paragraph 211(3)(ha)
Item 516: Paragraph 211(3)(hb)
Item 517: Paragraph 211(3)(j)
Item 518: Subsection 211(6)
745. 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.
746. Item 513B would insert new paragraphs 211(3)(fa) and 211(3)(fb). The effect of new
paragraph 211(3)(fa) would be that the FWC still does not need to be satisfied that
subsections 180(4A)-(4C) (which deal with the provision of disclosable benefits
documents) have been met in relation to a proposed variation of an enterprise
agreement. New paragraph 211(3)(fb) makes a minor technical modification to
paragraph 180(6)(c) to reflect that employees may be represented but do not appoint
bargaining representatives in relation to a proposed variation of an existing enterprise
agreement.
747. Item 516 would ensure that compliance with section 207A (which requires an employer
to obtain written agreement from relevant employee organisations to put a proposed
variation of a multi-enterprise agreement to a vote) is a condition of the FWC being
satisfied that the variation has been genuinely agreed to by the relevant employees
(subject to the FWC's discretion to disregard minor procedural or technical errors if
employees were not likely to have been disadvantaged by the errors).
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Part 14 - Enterprise agreement approval
Item 519: Subsection 229(3) (note)
748. 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)
749. 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)
750. 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.
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Part 15 Initiating bargaining
PART 15--INITIATING BARGAINING
Overview
751. 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, supported bargaining agreement or single interest employer
agreement).
752. 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)
753. 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 enterprise agreement occurs. The notification time is
significant as it marks the beginning of bargaining for a new enterprise agreement.
754. 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)
755. 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
notice of representational rights; and provides that regulations may be made to
prescribe how notices may be given.
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Part 15 - Initiating bargaining
756. 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)).
757. New paragraph 173(2A)(b) is intended to cover single-enterprise agreements made
before or after commencement where a single interest authorisation applied to the
bargaining.
758. 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 single interest employer
agreement).
Item 524: After paragraph 230(2)(a)
759. 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).
760. 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
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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)
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Part 16 -Better off overall test
PART 16--BETTER OFF OVERALL TEST
Overview
761. 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.
762. 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.
763. 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 where
necessary to address a concern it does not meet the BOOT;
• enabling the BOOT to be reassessed in limited circumstances, including if there has
been a material change in working arrangements or the relevant circumstances were
not properly considered during the approval process (reconsideration process).
764. 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 Skills Summit in removing unnecessary complexity in the
agreement-making process for workers and employers.
765. 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.
766. 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
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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
767. 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
768. 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. The
amendment must be "necessary" to address the concern.
769. By new subsection 191A(2), the FWC may approve the agreement if satisfied that an
amendment specified by the FWC is necessary to address the concern.
770. If intending to do so, the FWC must seek the views of any of the persons specified in
subsection 191A(3).
771. New section 191B would set out the effect of an amendment specified by the FWC.
772. The FWC would be required to note any amendment for an agreement in its approval
decision for the agreement (see subsection 201(4)).
773. 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)
774. This item would remove the reference to 'prospective award covered employee' from
existing subsection 193(1). This would ensure that, for non-greenfields 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)
775. This item would omit existing subsection 193(7), as it moves to new subsection
193A(7).
Item 528: At the end of Subdivision C of Division 4 of Part 2-4
776. This item would insert new section 193A.
Section 193A--Applying the better off overall test
777. New subsection 193A(1) would apply for the purpose of determining whether an
enterprise agreement passes the BOOT.
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778. 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 covered 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).
779. 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.
780. 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.
781. 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.
782. 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.
783. The purpose of this provision is to ensure the FWC gives primacy to the common views
of employers and employee organisations where applicable.
784. This would not apply if the agreement is a greenfields agreement (new subsection
193A(5)).
785. 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
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kinds of work that are not reasonably foreseeable: see for example Re Officeworks
Limited [2019] FWCA 6900.
786. 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.
787. 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
788. 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)
789. 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)
790. 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.
791. 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).
792. New subsection 211(4A) also makes modifications to ensure that the FWC must give
consideration to any views relating to whether the agreement (as varied) passes the
BOOT that have been expressed by the relevant employer or employers, employees,
and any employee organisations covered by the agreement. The FWC must also give
primary consideration to any common view that has been expressed by the relevant
employer or employers and any employee organisations that are covered by the
agreement.
Item 532: After section 213
Item 533: After section 215
Section 213A - FWC may approve variation with amendments
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Section 213B - Effect of amendment specified by FWC
Section 215A - Approval decision to note amendments
793. 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.
794. Where the FWC makes an amendment to an enterprise agreement (or an amendment to
a variation of an enterprise agreement under Subdivision A of Division 7 of the FW
Act) to address a concern about the BOOT, the amendment must be "necessary" to
address the concern.
795. If the FWC intends to specify an amendment to a variation of an enterprise agreement
that is necessary to address a concern about the BOOT, then the FWC must (rather than
may), seek the views of the relevant employer or employers and employee
organisations covered by the agreement.
Item 534: After Division 7 of Part 2-4
796. This item would insert new Division 7A (Reconsideration of whether an enterprise
agreement passes the BOOT), including new sections 227A--227D.
797. 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
properly considered, the reconsideration process provides an important mechanism to
have the BOOT reassessed to ensure employees are not left worse off.
798. 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
799. Subsections 227A(1) and (2) 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.
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Section 227B--Reconsideration of whether an enterprise agreement passes the better off
overall test
800. 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.
801. New subsection 227B(2) would modify the BOOT (i.e. existing section 193 and
proposed section 193A) so it may apply to reconsiderations.
802. New paragraph 227B(2)(a) is intended to remove any doubt that employees who are
'award covered employees' for the agreement at the time of the application for
reconsideration should also be considered award covered employees, under paragraphs
193(4)(a) and (b), for the purpose of the reconsideration.
803. The effect of paragraph 227B(2)(b) and subsection 227B(2A) is that the 'test time' for a
reconsideration of whether an enterprise agreement passes the BOOT is the time the
original application for approval of the agreement was made, or if the FWC has
approved one or more variations under section 211, the time the application for
approval of the most recent of those variations was made.
804. Paragraph 227B(2)(c) would clarify that BOOT reconsideration is not available in
respect of a greenfields agreement.
805. Paragraphs 227B(2)(d)-(f) are technical amendments to reflect that at the stage of a
reconsideration, there are no longer bargaining representatives for the agreement.
806. Subsection 227B(3) would empower the FWC to accept an undertaking or amend the
agreement if satisfied that the amendment is necessary to address a concern that the
enterprise agreement did not pass the BOOT.
807. 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
808. New sections 227C and 227D would set out the effect of undertakings or an
amendment specified by the FWC.
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Part 17 - Dealing with errors in enterprise agreements
PART 17--DEALING WITH ERRORS IN ENTERPRISE AGREEMENTS
Overview
809. 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.
810. 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
811. 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
812. 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.
813. 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.
814. 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.
815. By new subsection 218A(3), the variation would operate from the day specified in the
FWC's decision.
816. 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
817. This item would insert new sections 602A and 602B after existing section 602.
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Section 602A--Validation of approval of enterprise agreements
Section 602B--Validation of approval of variation of enterprise agreements
818. 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.
819. 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.
820. The validation process could commence on the FWC's own initiative or on application
(new subsections 602A(2) or 602B(2)).
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Part 18 - Bargaining disputes
PART 18--BARGAINING DISPUTES
Overview
821. 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.
822. 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.
823. 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).
824. 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.
825. 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.
826. 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.
827. 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)
828. Section 12 of the FW Act contains the Dictionary. This item would repeal the
definition of a bargaining related workplace determination.
829. This definition would no longer be required due to the repeal of the existing provisions
regarding bargaining related workplace determinations.
Item 537A: Section 12
830. This item would amend section 12 of the FW Act by inserting a new signpost definition
of 'end of the minimum bargaining period'.
Item 538: Section 12
831. This item would include in the Dictionary in section 12 of the FW Act signpost
definitions of 'intractable bargaining' declaration and 'intractable bargaining'
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workplace' determination. The definitions would provide cross references to the
relevant sections of the FW Act that would define these terms.
Item 539: Section 12 (definition of post-declaration negotiating period)
832. 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)
833. 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)
834. 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")
835. 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
836. 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
837. 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.
838. 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).
839. 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.
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840. 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 or single interest employer 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.
841. 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
842. 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) and the end of the minimum
bargaining period has passed.
843. New subsection 235(2) would list all of the matters of which the FWC must be satisfied
before making an intractable bargaining declaration:
• 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 - those processes would include, for example, private conciliation
conferences with the FWC;
• there is no reasonable prospect of agreement being reached if the FWC does not
make the declaration; and
• it is reasonable in all the circumstances to make the declaration, taking into account
the views of all the bargaining representatives.
844. 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
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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.
845. 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. However, the FWC would
not be able to consider what occurred during conciliation, as these conferences are
conducted in confidence.
846. The next matter 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 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).
847. Finally, the FWC would be required to be satisfied before making an intractable
bargaining declaration 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.
848. 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.
849. 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.
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850. Proposed subsection 235(5) would set out the meaning of "end of the minimum
bargaining period", which would be calculated in one of two ways - depending on
whether the bargaining is to replace one or more existing enterprise agreements or not.
851. Where an existing enterprise agreement(s) applies to any of the employees that will be
covered by the proposed agreement, the end of the minimum bargaining period would
be the earlier of:
• six months after the nominal expiry date for the existing enterprise agreement, or
the latest nominal expiry date if there are multiple existing enterprise agreements
that apply; or
• three months after an application under section 240 was made in relation to the
proposed enterprise agreement (if any).
852. Where the proposed enterprise agreement is not replacing an existing enterprise
agreement, the end of the minimum bargaining period would be three months after an
application has been made under section 240 in relation to the proposed enterprise
agreement. If there have been multiple applications under section 240 made for the
FWC to deal with a bargaining dispute in relation to a proposed enterprise agreement, it
is intended that the end of the minimum bargaining period would occur three months
after the first such application.
Section 235A-Post-declaration negotiating period
853. 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-
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.
854. 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.
855. 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.
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Item 544: Section 258
856. 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)
857. 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
858. 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.
859. 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)
860. 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
the bargaining related workplace determination provisions and the enactment of the
intractable bargaining workplace determination provisions.
Item 548: Subsection 270(1)
861. This item would repeal existing subsection 270(1) and replace it. This amendment
would reflect the repeal of the bargaining related workplace determination provisions
and the enactment of the intractable bargaining workplace determination provisions.
Item 548A: Subsection 270(3)
862. Existing subsection 270(3) provides that a bargaining related workplace determination
must include the terms that the FWC considers deal with the matters that were still at
issue at the end of the post-declaration negotiating period.
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863. Item 548A would repeal existing subsection 270(3) and substitute new subsection
270(3). Proposed new subsection 270(3) would provide that a bargaining related
workplace determination must include the terms that the FWC considers deal with the
matters that were still at issue after the end of the post-declaration negotiating period if
there is such a period, or otherwise after making the declaration.
864. The amendment is necessary because new section 235A (inserted by item 543) would
not mandate the provision of a post-declaration negotiation period. Proposed subsection
270(3) would cater for instances where the FWC does not specify a post-declaration
negotiating period.
Item 549: Subsections 270(4), (5) and (6)
865. Existing subsections 270(4), (5) and (6) would be repealed and replaced with a new
provision 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
866. This item would make a technical amendment to existing section 271 to replace the
reference to 'bargaining related workplace determination' with a reference to
'intractable bargaining workplace determination'.
Item 551: Section 271A
867. Item 551 would repeal existing section 271A. Section 271A would no longer be
necessary as proposed section 234 would provide that an application for an intractable
bargaining declaration cannot be made where the proposed agreement is a greenfields
agreement.
Item 552: Subsection 274(3)
868. 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.
869. 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.
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Item 553: Paragraph 413(7)(c)
870. 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.
871. 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
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.
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Part 19 - Industrial action
PART 19--INDUSTRIAL ACTION
Overview
872. This Part would:
• 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 before protected industrial action may be taken
for a proposed multi-enterprise agreement (excluding co-operative workplace and
greenfields agreements).
Division 2--Protected action ballot agents
Amendments to the Fair Work Act 2009
873. 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. 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.
874. 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
875. 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 574.
Item 562: Section 12 (definition of protected action ballot agent)
876. This item would insert 'or entity' in the definition of PAB agent to allow for the AEC
to be a PAB agent.
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Item 563: At the end of subsection 437(3)
877. 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.
878. 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)
879. 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
880. 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)
881. Section 443 specifies when the FWC must make a PABO.
882. 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)
883. 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.
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Item 568: Section 444 (heading)
884. This item would substitute a new heading for section 444 to reflect that the AEC would
no longer be the default PAB agent.
Item 569: Subsection 444(1)
885. This item would substitute subsection 444(1) with new subsections 444(1), 444(1A),
444(1B), 444(1C) and 444(1D).
886. New subsection 444(1) would provide that section 444 applies if the FWC must make a
PABO under subsection 443(1).
887. New subsection 444(1A) would require the FWC to decide the PAB agent for the PAB.
888. 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.
889. New subsection 444(1C) would require the person or entity to be an eligible PAB
agent.
890. 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.
891. 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)
892. 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)
893. Item 571 would, similar to item 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)
894. These items would substitute a new heading for section 449 and repeal and substitute
new subsection 449(1). These amendments would be necessary as the AEC would no
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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
895. This item would insert new section 468A.
896. New subsection 468A(1) would define the AEC and a person approved by the FWC
under subsection 468A(2) as an 'eligible PAB agent' who can conduct PABs.
897. 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.
898. 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.
899. 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.
900. 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 judicial review.
Item 575: Paragraph 469(a)
901. 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: Subsection 539(2) (table item 18, column 2, paragraph (d))
Item 576A: Subsection 539(2) (table item 19, column 2, paragraph (d))
Item 576B: Subsection 539(2) (table item 20, column 2, paragraph (d))
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902. These items would provide that the Electoral Commissioner is a person who may apply
to the courts for orders in relation to contraventions of civil penalty provisions, rather
than referring to the Australian Electoral Commission. Table items 18, 19 and 20 of the
table in subsection 539(2) relate to the conduct of PABs.
Division 3--Protected action ballots and multi-enterprise agreements
Amendments to the Fair Work Act 2009
903. Amendments to the FW Act proposed in other Parts would enable protected industrial
action to be taken in relation to a proposed multi-enterprise agreement (excluding co-
operative workplace and greenfields agreements).
Item 577: After section 437
904. This item would insert new section 437A which would require the FWC to issue one
PAB order in relation to the employees for each employer when dealing with
bargaining for a multi-enterprise agreement. This means that any protected industrial
action arising out of the ballot would be conducted on an employer-by-employer basis.
The amendments would not apply to related employers, as they continue to make
single-enterprise agreements (see item 627B of the Bill).
Division 4--Notice requirements for industrial action
Amendments to the Fair Work Act 2009
905. 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 an eligible type of multi-enterprise agreement.
Item 579: Paragraph 414(2)(a)
906. 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 eligible multi-enterprise agreements. 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.
Item 579A: At the end of subsection 414(2)
907. While cooperative workplace agreements are multi-enterprise agreements, to avoid any
confusion, a legislative note is inserted to point to subsection 413(2). This subsection
would be amended by item 625 to omit 'multi-enterprise agreement' and substitute 'a
cooperative workplace agreement'. After this amendment subsection 413(2) would
provide that to be protected industrial action, the industrial action must not be related to
a proposed enterprise agreement that is a greenfields agreement or a cooperative
workplace agreement.
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Item 580: Subsection 443(5)
908. 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 FWC with
the capacity to order a maximum notice period of 7 working days across single
enterprise bargaining and eligible types of multi-enterprise bargaining.
Division 5--Mediation and conciliation
Amendments to the Fair Work Act 2009
909. 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)
910. This item would insert a new subsection 409(6A) into section 409 which defines
'employee claim action'. Industrial action which is employee claim action is not
protected unless the requirements of section 409 are met.
911. 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: Section 411 (after the heading)
Item 582A: Section 411
Item 583: At the end of section 411
912. Items 582 and 582A restructure section 411 by adding a new subheading and
converting the existing provisions into new subsection (1). Item 583 would insert new
paragraph 411(1)(d) and new subsections 411(2) and (3) 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
had contravened an order under section 448A, protected industrial action would not be
available to the employer under that PAB.
Item 584: Subsection 443(3A)
913. 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
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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
Subdivision BA - FWC must conduct conferences
Clause 448A - FWC must conduct conferences
914. This item would insert a heading for a new Subdivision BA entitled 'Subdivision BA--
FWC must conduct conferences' as well as inserting new section 448A.
915. 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.
916. New subsection 448A(2) would provide that the conference must end on or before the
day that voting in the PAB closes.
917. 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.
918. 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.
919. 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)).
920. 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).
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Part 20 - Supported bargaining
PART 20--SUPPORTED BARGAINING
Overview
921. 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.
922. 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.
923. 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.
924. 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.
925. 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.
926. 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).
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927. 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)
928. These items would repeal references to the low-paid bargaining stream.
929. 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.
930. 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)
931. Item 589 is consequential upon the insertion of new subsection 58(3).
932. 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 multi-enterprise agreement has passed its nominal expiry date.
933. 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.
934. 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
was to avoid being specified in the authorisation. New subsection 58(3) would operate
to give effect to that rule.
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935. 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")
936. 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
937. 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.
938. 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)
939. These items would make technical amendments to replace references to 'low-paid' with
'supported bargaining'.
Item 596A: After subsection 211(1)
940. Existing section 211 sets out when the FWC must approve a variation of an enterprise
agreement. Item 596A inserts subsection 211(1A) that would provide that the FWC
must not approve the variation if the varied agreement will cover employees whose
employer is specified in a supported bargaining authorisation, or a single interest
employer authorisation, in relation to those employees.
Item 597: In the appropriate position in Division 7 of Part 2-4
941. This item would insert new Subdivision AA and Subdivision AB into Division 7 of Part
2-4 of the FW Act.
942. Subdivision AA would provide for how a supported bargaining agreement can be
varied to add an employer and their employees by consent.
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943. 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.
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
944. 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.
945. 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.
946. 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 216AAA - Terms of variation must be explained to employees
947. Subsection 216AAA(1) would provide that before an employer requests that affected
employees approve the proposed variation, the employer must take all reasonable steps
to ensure that:
• the terms of the agreement as proposed to be varied, and the effect of those terms,
are explained to the affected employees; and
• the explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of those employees.
948. Subsection 216AAA(2) would provide that without limiting paragraph 1(b), the
following are examples of the kinds of employees whose circumstances and needs are
to be taken into account for the purposes of complying with that paragraph:
• employees from culturally and linguistically diverse backgrounds;
• young employees;
• employees who were not represented during negotiations for the variation.
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Section 216AA - Application for the FWC's approval of a variation of a supported
bargaining agreement to add employer and employees
949. 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
950. 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.
951. 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
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.
952. New subsection 216AB(2) would provide that the FWC must not approve the variation
if, as a result of the variation, the agreement would cover employees in relation to
general building and construction work.
953. New subsection 216AB(3) that would provide that the FWC must not approve the
variation if the employer that will be covered by the agreement is specified in a single
interest employer authorisation in relation to any of the affected employees.
Section 216AC - Determining whether the FWC would have been required to make a
supported bargaining authorisation
954. 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
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applied in the context of 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
955. 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.
956. 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.
957. 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.
958. New paragraph 216AD(1)(d) would have the effect that the new requirement to obtain
written agreement from relevant employee organisations to put a variation of a multi-
enterprise agreement to a vote of employees does not apply to a variation of a supported
bargaining agreement to add an employer and their employees.
959. Applications to make the relevant variations must be made jointly by the employer and
their affected employees.
960. New paragraph 216AD(1)(e) would provide that when the FWC is to determine
whether it is satisfied that a variation of a supported bargaining agreement to cover a
new employer and its employees has been genuinely agreed to in accordance with
section 188 (which deals with genuine agreement), subsections 188(4A) and (5) are to
apply as if references to subsection 180(5) were references to section 216AAA.
961. New paragraphs 216AD(1)(e) and (f) have the effect that the FWC must be satisfied
that the employer has taken all reasonable steps to explain the terms of the supported
bargaining agreement, as varied, and their effect, to employees in a manner appropriate
to their circumstances and needs (subject to any minor errors that may be disregarded
under subsection 188(5)).
962. 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.
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Section 216AE - When the FWC may refuse to approve a variation of a supported bargaining
agreement to add employer and employees
963. 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
964. 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
965. 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.
966. 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
967. 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.
968. 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 section 243. New
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section 243 sets out when the FWC must make a supported bargaining authorisation,
including whether the employers have clearly identifiable common interests, etc.
969. New paragraph 216BA(3)(a) would provide that the FWC must not make the variation
if, as a result of the variation, the agreement would cover employees in relation to
general building and construction work.
970. New paragraph 216BA(3)(b) would provide that the FWC must not make the variation
if the affected employees are covered by an enterprise agreement that has not passed its
nominal expiry date.
971. New subsection 216BA(4) would provide that the FWC must not make the variation if
the employer that will be covered by the agreement is specified in a single interest
employer authorisation in relation to any of the affected employees.
Section 216BB - When the FWC may refuse to make a variation of a supported bargaining
agreement to add employer and employees
972. 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 (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
973. 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)
974. These items would make technical amendments to replace the words 'low-paid' with
'supported bargaining'.
Item 600: After subsection 236(1)
975. 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.
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Item 601: Paragraph 240(2)(b)
Item 602: Division 9 of Part 2-4 (heading)
976. 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)
977. 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.
978. 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.
979. 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)
980. These items would make technical amendments to replace the words 'low paid' with
'supported bargaining'.
981. 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 611: Section 243
982. 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.
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Section 243- When the FWC must make a supported bargaining authorisation
983. 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.
984. 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.
985. 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.
986. 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.
987. Subsection 243(4) would provide that an authorisation comes into operation on the day
on which it is made.
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Section 243A- Restrictions on making supported bargaining authorisations
988. New subsection 243A(1) would provide that a supported bargaining authorisation
cannot specify an employee who is covered by a single-enterprise agreement that has
not passed its nominal expiry date.
989. 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.
990. 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.
991. New subsection 243A(4) would provide that the FWC must not make a supported
bargaining authorisation in relation to a proposed enterprise agreement if the agreement
would cover employees in relation to general building and construction work.
Item 612: Section 244 (heading)
Item 613: Subsections 244(1) and (3)
992. These items would make technical amendments to replace the words 'low-paid' with
'supported bargaining'.
993. 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)
994. This item would amend section 244 in relation to the process for varying a supported
bargaining authorisation to add a new employer.
995. New subsection 244(4) 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
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• any other matters the FWC considers appropriate.
996. 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.
997. New subsection 244(5) would provide that the FWC must not vary the authorisation if,
as a result, the proposed supported bargaining agreement would cover employees in
relation to general building and construction work.
Item 615: Section 245
Section 245 - Variation of supported bargaining authorisations - enterprise agreement etc.
comes into operation
998. Items 615 repeals existing section 245 and substitutes a new section 245.
999. New section 245 would provide that the FWC is taken to have varied a supported
bargaining authorisation to remove an employer's name when the employer and all of
their employees who are specified in the authorisation are covered by an enterprise
agreement, or a workplace determination, that is in operation.
1000. This is a technical change to existing section 245, which would eliminate the possibility
of an employer being removed from an authorisation where they make an enterprise
agreement with a separate group of employees to those covered by the authorisation or
where they make a supported bargaining agreement with some, but not all, of the
employees specified in the authorisation.
Item 618: Section 246 (heading)
Item 619: Subsection 246(1)
1001. 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)
1002. These items would make technical amendments to remove references to low-paid
workplace determinations. Instead, a bargaining representative for a proposed
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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)
1003. 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.
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Part 21 - Single interest employer authorisations
PART 21--SINGLE INTEREST EMPLOYER AUTHORISATIONS
Overview
1004. 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).
1005. 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.
1006. 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 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
1007. 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 a multi-enterprise agreement is a single interest employer agreement
if a single interest employer authorisation was in operation in relation to the agreement
immediately before the agreement was made. This reflects the conceptual change from
a single interest employer agreement being a single-enterprise agreement, to being a
multi-enterprise agreement.
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Item 627A: Section 169 (paragraph beginning 'Division 10')
1008. Item 627A would update the guide to Part 2-4 of the FW Act to remove the sentence
which specifies that the effect of a single interest authorisation is that the employers
specified in the authorisation are single interest employers in relation to a proposed
agreement.
Item 627B: Subsections 172(2) and (3)
1009. Item 627B would amend subsections 172(2) and (3) of the FW Act to omit references
to the term "single interest employers" and substitute them with the term "related
employers".
Item 627C: Subsection 172(5)
1010. Item 627C would repeal subsection 172(5) which specifies when two or more
employers are single interest employers. The item would then insert new subsections
172(5) and (5A).
Requirement for employer specified in single interest employer authorisation
1011. New subsection 172(5) would provide that despite any other provision of Part 2-4, if an
employer is specified in a single interest employer 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 single interest employer agreement, and the
employer must not initiate bargaining, agree to bargain, or be required to bargain with
those employees for any other kind of enterprise agreement.
Related employers
1012. New subsection 172(5A) would provide that two or more employers are related
employers if the employers are engaged in a joint venture or common enterprise; or the
employers are related bodies corporate. These employers will continue to make single-
enterprise agreements.
1013. The effect of item 627C is that the concept of single interest employers will be removed
from the FW Act. Only an employer, or two or more employers that are related
employers may make a single-enterprise agreement with relevant employees and one or
more relevant employee organisations. Two or more employers that are not all related
employers may make a multi-enterprise agreement with relevant employees and one or
more relevant employee organisations. This means that employers that are specified in
a single interest employer authorisation that is in operation in relation to a proposed
enterprise will ultimately make a type of multi-enterprise agreement (a single interest
employer agreement) with the relevant employees and employee organisations, subject
to the transitional arrangements.
Item 628: At the end of subsection 173(2)
1014. 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
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Part 21 - Single interest employer authorisations
authorisation in relation to the agreement that specifies the employer comes into
operation.
1015. 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).
1016. 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
1017. 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.
1018. 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.
1019. 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).
1020. 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.
1021. 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.
Section 216D--Variation of single interest employer agreement to add employer and
employees--joint variation
1022. 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
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such a variation would be that the employer and the affected employees will be covered
by that agreement.
1023. 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.
1024. New subsection 216D(3) would provide that the employer may request the affected
employees to approve the proposed variation by voting for it.
1025. 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.
1026. 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 216DAA - Terms of variation must be explained to employees
1027. Subsection 216DAA(1) would provide that before an employer requests that affected
employees approve the proposed variation, the employer must take all reasonable steps
to ensure that:
• the terms of the agreement as proposed to be varied, and the effect of those terms,
are explained to the affected employees; and
• the explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of those employees.
1028. Subsection 216DAA(2) would provide that without limiting paragraph 1(b), the
following are examples of the kinds of employees whose circumstances and needs are
to be taken into account for the purposes of complying with that paragraph:
• employees from culturally and linguistically diverse backgrounds;
• young employees;
• employees who were not represented during negotiations for 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
1029. 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.
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1030. 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.
1031. 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)).
1032. 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.
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
1033. 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.
1034. 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.
1035. 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
1036. New section 216DC would set out the criteria of which the FWC must be satisfied
before approving a variation of a single interest employer agreement to add a new
employer and its employees. Different criteria would apply depending on whether the
application for the variation was made by the employer or by an employee organisation.
It would also clarify the requirements of which the FWC must be satisfied depending
on whether the single interest employer agreement covers common interest employers
or franchisees. The term 'common interest employers' would be introduced to refer to
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those employers who may be included in a single interest employer authorisation who
are not franchisees.
Approval of variation by the FWC
1037. New subsection 216DC(1) would provide that the FWC must approve a variation of a
single interest employer agreement if two criteria are met. The first is that an
application for approval of the variation has been made under section 216DA
(application by employer) or new section 216DB (application by employee
organisation). The second criterion is met when the FWC is satisfied of three additional
matters. These are:
• the employers and any employee organisations covered by the agreement have had
an opportunity to express to the FWC their views (if any) on the application;
• either:
o the application was made by an employer under new section 216DA and the
variation has been genuinely agreed to by the affected employees in
accordance with section 216DD (which sets out the requirements for genuine
agreement); or
o if the application was made by an employee organisation under new section
216DB--the requirements of subsection (1A) are met (subsection (1A) sets
out additional requirements that must be met if the application has been made
by an employee organisation); and
• the requirements of either new subsection (2) (which deals with franchisees) or (3)
(which deals with common interest employers) are met.
Additional requirements for application by employee organisation
1038. If the application for variation was made by an employee organisation under new
subparagraph 216DC(1)(b)(iii), the requirements of new subsection 216DC(1A) must
be met. New subsection 216DC(1A) would provide that the requirements of this
subsection are met if:
• the employer covered by the agreement is not a small business employer; and
• a majority of the affected employees want to be covered by the agreement (new
subsection (1B) would outline how the FWC may work out whether a majority of
the affected employees want to be covered); and
• subsection (1C) does not apply to the employer (new subsection (1C) would set out
the circumstances in which employers are precluded from being compelled into
being covered by a single interest employer agreement).
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1039. New subsection 216DC(1B) would provide that for the purposes of paragraph (1A)(b),
the FWC may work out whether a majority of the affected employees want to be
covered by the agreement using any method the FWC considers appropriate.
1040. For the purposes of new paragraph 216DC(1A)(c), the FWC must approve a variation
of a single interest employer agreement to cover a new employer and its employees
where the application has been made by an employee organisation and subsection (1C)
does not apply to the employer. New subsection 216DC(1C) will apply to the employer
if:
• the employer and the affected employees are covered by another enterprise
agreement that has not passed its nominal expiry date at the time that the FWC will
approve the variation; or
• the employer and an employee organisation that is entitled to represent the
industrial interests of one or more of the affected employees have agreed in writing
to bargain for a proposed single-enterprise agreement that would cover the
employer and the affected employees or substantially the same group of the affected
employees.
Franchisees
1041. New subparagraph 216DC(1)(b)(iv) would provide that the FWC must approve a
variation of a single interest employer agreement to cover a new employer and its
employees if the requirements of subsections 216DC(2) or (3) are met. New subsection
216DC(2) would prescribe the requirements that are to be met for employers who are
franchisees. The requirements of this subsection would be met if the employers covered
by the agreement and the employer that will be covered by the agreement carry on
similar business activities under the same franchise and are:
• franchisees of the same franchisor; or
• related bodies corporate of the same franchisor; or
• any combination of the above.
Common interest employers
1042. New subsection 216DC(3) would prescribe the requirements that are to be met for
employers who are common interest employers. This term is used to identify single
interest employers who are not franchisees. The requirements of this subsection would
be met if it is appropriate to approve the variation, having regard to:
• whether the employers covered by the agreement and the employer that will be
covered by the agreement have clearly identifiable common interests (subsection
3A sets out matters that may be relevant to determining whether the employers have
a common interest); and
• whether it would be contrary to the public interest to approve the variation.
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1043. For example, employers specified in a supported bargaining authorisation would not
meet the public interest criterion as new paragraph 172(7)(a) provides that the only kind
of enterprise agreement the employer may make with their employees who are
specified in the authorisation is a supported bargaining agreement.
1044. In performing its functions or exercising its powers generally under the FW Act, the
FWC is required to have regard to the objects of the FW Act and the objects of any
relevant Part of the FW Act (in existing section 578(a)). For example, when considering
whether it would be contrary to the public interest to approve the variation, the FWC
would have regard to the objects of the FW Act (contained in section 3), such as
whether making the variation will promote productivity and economic growth while
being fair to working Australians, and the objects of Part 2-4 (contained in section 171),
such as whether approving the variation promotes collective bargaining in good faith,
particularly at the enterprise level.
1045. New subsection 216DC(3A) would provide that or the purposes of paragraph (3)(a),
matters that may be relevant to determining whether the employers have a common
interest include the following:
• geographical location;
• regulatory regime;
• the nature of the enterprises to which the agreement relates, and the terms and
conditions of employment in those enterprises.
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
1046. New section 216DD would ensure that the principles of genuine agreement in new
section 188 apply to variations voted up by employees.
1047. New subsection 216DD(1) would provide that, for the purposes of new
subparagraph 216DC(1)(b)(ii) (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 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;
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• 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;
• as if subsections 188(2A), (3) and (4) were omitted. These subsections deal with
requirements for certain agreements: to obtain written agreement from any
employee organisations who are bargaining representatives to put the agreement to
a vote (subsection 188(2A); to issue a NERR (subsection 188(3)); and not to request
employees vote to approve an agreement until 21 days after the last NERR is given
(subsection 188(4));
• as if, in subsections 188(4A) (explanation of the terms of an agreement) and (5)
(minor errors may be disregarded), references to subsection 180(5) were references
to section 216DAA (explanation of the terms of the variation to add a new
employer and its employees); and
• as if, in paragraph 188(5)(c) (minor errors may be disregarded for the making of
different kinds of enterprise agreements by employee vote), the reference to
subsection 182(1) or (2) were a reference to subsection 216D(5) (when a variation
of a single interest employer agreement to add a new employer and its employees is
made).
1048. 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
(subsection 188(1)) when determining whether it is satisfied that the variation has
been genuinely agreed to by the affected employees (with necessary modifications
set out in new subsection 216DD as set out below);
• 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));
• be satisfied that the employer has complied with subsection 216DAA in relation to
the variation (the employer has explained the terms of the variation and the effect of
those terms to the affected employees taking into account their particular
circumstances and needs);
• may disregard minor procedural or technical errors made when providing this
explanation to employees; and
• may disregard minor procedural or technical errors that occur when the agreement
is made by a majority vote of employees under subsection 216D(5).
1049. New subsection 216DD(2) would provide that, in taking into account the statement of
principles made under new section 188B for the purposes of determining whether a
variation of a single interest employer agreement to add a new employer and its
employees has been genuinely agreed to:
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• 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.
1050. 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
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 subsection 216DD(3) assists in addressing unforeseen circumstances
where further modifications to the approval requirements may be necessary.
1051. 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
1052. 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.
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1053. 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.
1054. 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
1055. New section 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.
Item 629A: Subsection 229(2)
1056. Item 629A would amend subsection 229(2) of the FW Act by inserting the words
"single interest employer authorisation" after the word "authorisation".
1057. Section 229 of the FW Act sets out when applications can be made for bargaining
orders. This amendment is consequential on the change in classification for these
agreements to multi-enterprise agreements and would extend the availability of
bargaining orders to a proposed multi-enterprise agreement where a single interest
employer authorisation is in operation. This would effectively preserve the status quo
for single interest employer agreements.
Item 630: At the end of subsection 230(2)
1058. 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 630A: Subsection 238(2)
1059. Existing subsection 238(2) of the FW Act prohibits a bargaining representative
applying for a scope order if a single interest employer authorisation is in operation.
Item 630A would repeal subsection 238(2) of the FW Act to reflect the fact that a
single interest employer agreement will be a multi-enterprise agreement and that scope
orders only remain available for proposed single-enterprise agreements (other than
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greenfields agreements). This would effectively preserve the status quo for single
interest employer agreements.
Item 630B: After paragraph 240(2)(b)
1060. Existing subsection 240(2) of the FW Act provides that a bargaining representative for
a proposed enterprise agreement that is either a single-enterprise agreement or a multi-
enterprise agreement in relation to which a low paid authorisation is in operation, may
apply to the FWC unilaterally (without agreement of the other bargaining
representatives) for the FWC to deal with a bargaining dispute about the proposed
agreement. Item 630B would insert a new paragraph 240(2)(c) to provide that a
unilateral application for the FWC to deal with a bargaining dispute may also be made
if the proposed agreement is a multi-enterprise agreement in relation to which a single
interest employer authorisation is in operation. This would effectively preserve the
status quo for single interest employer agreements.
Item 631: Subdivision A of Division 10 of Part 2-4
1061. 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)
1062. This item would repeal the heading to Subdivision B--Single interest employer
authorisations and is a consequential amendment.
Item 633: Subsection 248(1)
1063. This item would repeal existing subsection 248(1) and replace it with 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.
1064. 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.
Item 633A: Subsection 249(1)
1065. Item 633A would repeal existing subsection 249(1) and substitute it with new
subsection 249(1), which sets out when the FWC must make a single interest employer
authorisation.
1066. New subsection 249(1) would delineate the requirements of which the FWC must be
satisfied before making a single interest employer authorisation depending on whether
the application for the authorisation was made by the employer and its employees, or an
employee organisation. It would also clarify the requirements of which the FWC must
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be satisfied depending on whether the single interest employer authorisation is to
operate in respect of two or more common interest employers or franchisees. The term
'common interest employers' would be introduced by these amendments and used to
identify those employers who may be included in a single interest employer
authorisation but who are not franchisees
Single interest employer authorisation
1067. New subsection 249(1) would provide that the FWC must make a single interest
employer authorisation in relation to a proposed enterprise agreement if an application
for the authorisation has been made and the FWC is satisfied that all of the following
requirements are met:
• at least some of the employees that will be covered by the agreement are
represented by an employee organisation;
• the employers and the bargaining representatives of the employees of those
employers have had the opportunity to express to the FWC their views (if any) on
the authorisation;
• either:
o the application was made by 2 or more employers under paragraph 248(1)(a) -
the requirements set out in new subsection (1A) are met (new subsection (1A)
sets out additional requirements that must be met if the application for the
authorisation has been made by two or more employers); or
o the application was made by a bargaining representative under paragraph
248(1)(b)- each employer has either
o consented to the application; or
o is covered by subsection (1B) (subsection (1B) sets out additional
requirements that must be met if the application has been made by a
bargaining representative of an employee who will be covered by the
agreement), and
• the requirements of either subsection (2) or subsection (3) (which deal with
franchisees and common interest employers respectively) are met.
Additional requirements for application by employers
1068. If the application for a single interest employer authorisation was made by two or more
employers, under paragraph 248(1)(a), new subparagraph 249(1)(b)(iii) would provide
that the requirements of new subsection 249(1A) must be met. Subsection 249(1A)
would provide that the requirements of this subsection are met if:
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• the employers that will be covered by the agreement have agreed to bargain
together; and
• no person coerced, or threatened to coerce, any of the employers to agree to bargain
together.
Additional requirements for application by bargaining representative
1069. If the application for a single interest employer authorisation was made by a bargaining
representative under paragraph 248(1)(b), new subparagraph 249(1)(b)(iv) would
provide that each employer must have either consented to the application, or be covered
by new subsection 249(1B). New subsection 249(1B) would provide that an employer
is covered by this subsection if:
• the employer is not a small business employer; and
• 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; and
• 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; and
• a majority of the employees who are employed by the employer at a time
determined by the FWC and who will be covered by the agreement want to bargain
for the agreement (new subsection (1C) would outline how the FWC may work out
whether a majority of the affected employees want to be covered); and
• subclause (1D) does not apply to the employer (subclause (1D) would set out the
circumstances in which employers are precluded from being compelled into a single
interest employer authorisation).
1070. New subsection 249(1C) would provide that, for the purposes of new
paragraph 249(1B)(d), the FWC may work out whether a majority of employees want
to bargain using any method the FWC considers appropriate.
1071. New paragraph 249(1B)(e) would provide that an employer is covered by new
subsection 249(1B) if subsection (1D) does not apply to the employer. Subclause
249(1D) sets out criteria that will preclude an employer being compelled into a single
interest employer authorisation (on application by a bargaining representative of an
employee). Subclause 249(1D) applies to an employer if:
• the employer and the employees of the employer that will be covered by the
agreement are covered by an enterprise agreement that has not passed its nominal
expiry date at the time that the FWC will make the authorisation; or
• the employer and an employee organisation that is entitled to represent the
industrial interests of one or more of the affected employees have agreed in writing
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to bargain for a proposed single-enterprise agreement that would cover the
employer and the affected employees or substantially the same group of the affected
employees.
Item 634: Subsection 249(2)
1072. Item 634 would omit the words 'if the FWC is satisfied that' from subsection 249(2) of
the FW Act which sets out when employers are franchisees when applying for a single
interest employer authorisation. This is because the requirement for the FWC's
satisfaction is now included at new paragraph 249(1)(b).
Item 634A: Subsection 249(3)
1073. Item 634A would repeal subsection 249(3) (employers that may bargain together for an
agreement) and substitute it with new subsections 249(3) and (3A). New subsection
249(3) would provide that the requirements of this subsection are met if:
• the employers have clearly identifiable common interests; and
• it is not contrary to the public interest to make the authorisation.
1074. For example, when considering whether it would be contrary to the public interest to
make the authorisation, the FWC would have regard to the objects of the FW Act
(contained in section 3), such as whether making the variation will promote
productivity and economic growth while being fair to working Australians, and the
objects of Part 2-4 (contained in section 171), such as whether approving the variation
promotes collective bargaining in good faith, particularly at the enterprise level.
1075. New subsection 249(3A) would provide that, for the purposes of paragraph (3)(a),
matters that may be relevant to determining whether the employers have clearly
identifiable common interests include the following:
• geographical location;
• regulatory regime;
• the nature of the enterprises to which the agreement will relate, and the terms and
conditions of employment in those enterprises.
1076. When considering the nature of the enterprises, factors such as the relative size and
scope of the enterprises would be relevant.
Item 635: Subparagraph 249(4)(b)(i)
1077. Item 635 would omit the words 'the day on which' from subparagraph 249(4)(b)(i) of
the FW Act and substitute them with 'at the same time as'. Item 635 would therefore
amend subsection 249(4) to provide that a single interest employer authorisation ceases
to be in operation at the earlier of the following:
• at the same time as the enterprise agreement to which the authorisation relates is
made; or
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• 12 months (or a longer period if extended) after the day on which the authorisation
is made.
Item 635A: After section 249
1078. This item would insert new section 249A into the FW Act. New section 249A would
provide that the FWC must not make a single interest employer authorisation in relation
to a proposed enterprise agreement if the agreement would cover employees in relation
to general building and construction work. General building and construction work is
defined in Part 23A of the Bill.
Item 636: Subsection 250(2)
1079. This item would amend existing subsection 250(2) of the FW Act by omitting the
words 'employers that may bargain together for a proposed enterprise agreement' and
substituting them with 'common interest employers'. Amended subsection 250(2) of
the FW Act would provide that, if the FWC is satisfied of the matters specified in
subsection 249(2) or (3) (which deal with franchisees and common interest employers
respectively) in relation to only some of the employers that will be covered by the
agreement, the FWC may make a single interest employer authorisation specifying
those employers and their employees only.
Item 636A: At the end of section 250
1080. Item 636A would insert new subsections 250(3) and (4) into the FW Act. New
subsection 250(3) would provide that the FWC may make a single interest employer
authorisation that does not specify one or more employers specified in an application
for the authorisation, and the employees (the relevant employees) of those employers
specified in that application, if the FWC is satisfied that:
• the employers are bargaining in good faith for a proposed enterprise agreement that
will cover the employers and the relevant employees, or substantially the same
group of the relevant employees; and
• the employers and the relevant employees have a history of effectively bargaining
in relation to one or more enterprise agreements that have covered the employers
and the relevant employees, or substantially the same group of the relevant
employees; and
• on the day that the FWC will make the authorisation, less than 6 months have
passed since the most recent nominal expiry date of an agreement for which the
parties have effectively bargained.
1081. For the purposes of new paragraph 250(3)(b), an employer is likely to have a history of
effectively bargaining in relation to one or more enterprise agreements if one or more
of those resulting enterprise agreements provided for terms and conditions that were
more than a marginal improvement on those contained in the relevant award (i.e. they
must do more than simply pass the BOOT). The requirement would operate so that only
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Part 21 - Single interest employer authorisations
enterprise agreements that provide genuine benefits to both the employer/s and their
relevant employees would be relevant to the FWC's decision to exercise its discretion
not to make a single interest employer authorisation that would specify the employer
and its relevant employees. This discretion would not need to be relied upon where the
parties have agreed (in writing) to bargain for a single-enterprise agreement as these
parties would be excluded under clause 249(1D)(b).
1082. Overall, new subsection 250(3) would provide the FWC discretion to refuse an
application for a single interest employer authorisation, even if the requirements in new
subsection 249(1) are met, if the FWC is satisfied that the authorisation should not be
made having regard to current bargaining. The subsection would uphold and respect the
ability of an employer to bargain with relevant employees in appropriate circumstances.
1083. New subsection 250(4) would provide that, if the effect of subsection (3) is that no
employers would be specified in the authorisation, the FWC may refuse the application
for the authorisation.
Item 637: Subsections 251(1) and (2)
1084. 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).
1085. 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
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.
1086. 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:
• the 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.
1087. 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) and (4)
1088. This item would repeal existing subsections 251(3) and (4) and substitute them with
new subsections 251(3)-(8).
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Variation to add employer
1089. New subsection 251(3) would provide that the following may apply to the FWC for a
variation of a single interest employer authorisation to add the name of an employer
(the new employer) that is not specified in the authorisation to the authorisation:
• the new employer;
• person who is a bargaining representative:
o for the proposed enterprise agreement to which the authorisation relates; and
o of an employee of the new employer.
1090. New subsection 251(4) would provide that the FWC must vary the authorisation to add
the new employer's name if an application for the variation has been made and the
FWC is satisfied of all of the following:
• 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; and
• either
o the application was made by the new employer under new paragraph
251(3)(a) and no person coerced, or threatened to coerce, the new employer to
make the application; or
o the application was made by a bargaining representative under new
paragraph 251(3)(b) and the requirements of subsection (5) are met (new
subsection 251(5) sets out additional requirements that apply where an
application to vary a single interest employer authorisation is made by a
bargaining representative of an employee); and
• the requirements of subsection 249(2) or (3) (which deal with franchisees and
common interest employers respectively) would continue to be met if the new
employer's name were added.
Additional requirements for application by bargaining representative
1091. Pursuant to new subparagraph 251(4)(b)(iii), if an application to add an employer to a
single interest employer authorisation is made by a bargaining representative of an
employee, the FWC must be satisfied that the requirements in new subsection 251(5)
are met before varying the authorisation. The requirements of new subsection 251(5)
are met if:
• the new employer is not a small business employer; and
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Part 21 - Single interest employer authorisations
• the new 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; and
• the new 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; 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 (new subsection 251(6) would outline
how the FWC may work out whether a majority of the affected employees want to
be covered); and
• subsection (7) does not apply to the employer (new subsection 251(7) would
provide that an employer is to be excluded if its relevant employees are covered by
an enterprise agreement that has not passed its nominal expiry date or if bargaining
for a proposed enterprise agreement is ongoing and certain criteria are met).
1092. New subsection 251(6) would provide that for the purposes of paragraph (5)(d), the
FWC may work out whether a majority of employees want to bargain using any method
the FWC considers appropriate.
1093. New subsection 251(7) would apply to an employer if:
• the new employer and the employees of the new employer that will be covered by
the agreement are covered by an enterprise agreement that has not passed its
nominal expiry date at the time that the FWC will make the variation; or
• the new employer and an employee organisation that is entitled to represent the
industrial interests of one or more of the affected employees have agreed in writing
to bargain for a proposed single-enterprise agreement that would cover the
employer and the affected employees or substantially the same group of the affected
employees
Employers and employees that are already bargaining
1094. New subsection 251(8) would provide that despite new subsection 251(4), the FWC
may refuse to vary the authorisation if the FWC is satisfied that:
• the new employer is bargaining in good faith for a proposed enterprise agreement
that will cover the new employer and the employees of the new employer that will
be covered by the agreement, or substantially the same group of those employees;
and
• the new employer and those employees have a history of effectively bargaining in
relation to one or more enterprise agreements that have covered the new employer
and those employees, or substantially the same group of those employees; and
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• on the day that the FWC will vary the authorisation, less than 6 months have passed
since the most recent nominal expiry date of an agreement for which the parties
have effectively bargained.
1095. For the purposes of new paragraph 251(8)(b), an employer is likely to have a history of
effectively bargaining in relation to one or more enterprise agreements if one or more
of those resulting enterprise agreements provided for terms and conditions that were
more than a marginal improvement on those contained in the relevant award (i.e. they
must do more than simply pass the BOOT).The requirement would operate so that only
enterprise agreements that provide genuine benefits to both the employer/s and their
relevant employees would be relevant to the FWC's decision to exercise its discretion
not to vary the authorisation to add the employer and its relevant employees. This
discretion would not need to be relied upon where the parties have agreed (in writing)
to bargain for a single-enterprise agreement as these parties would be excluded under
new paragraph 251(7)(b) but would be relevant where the parties were bargaining for a
co-operative workplaces agreement, provided the other criteria were met.
1096. Overall, new subsection 251(8) would provide the FWC discretion to refuse an
application to vary a single interest employer authorisation to add a new employer,
even if the requirements in new subsection 251(4) are met, if the FWC is satisfied the
variation should not be made having regard to current bargaining. The subsection
would uphold and respect the ability of an employer to bargain with relevant employees
in appropriate circumstances.
Item 639A: After section 251
Section 251A - Restriction on variation of single interest employer authorisation
1097. This item would insert new section 251A into the FW Act. New section 251A would
provide that the FWC must not vary a single interest employer authorisation if, as a
result of the variation, the proposed enterprise agreement to which the authorisation
relates would cover employees in relation to general building and construction work.
This is consistent with the exclusion of general building and construction work from
coverage by a multi-enterprise agreement.
Item 640A: Subsection 477(2)
1098. Item 640A would repeal existing subsection 477(2) of the FW Act and substitute it with
new subsection 477(2).
1099. Existing subsection 477(1) of the FW Act applies if Part 3-3 of the FW Act (which sets
out provisions for the taking of protected industrial action) permits an application to be
made by a bargaining representative of an employer that will be covered by a proposed
single-enterprise agreement.
1100. New section 477(2) would provide that if the agreement will cover more than one
employer, the application may be made by a bargaining representative of an employer
that will be covered by the agreement, on behalf of one or more other such bargaining
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Part 21 - Single interest employer authorisations
representatives, if those other bargaining representatives have agreed to the application
being made on their behalf.
1101. New subsection 477(2) reflects the change of a single interest employer agreement
from a single-enterprise agreement to a multi-enterprise agreement.
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Part 22 - Varying enterprise agreements to remove employers and their employees
PART 22--VARYING ENTERPRISE AGREEMENTS TO REMOVE EMPLOYERS
AND THEIR EMPLOYEES
Overview
1102. Part 22 would amend the FW Act to empower an employer and affected employees to
jointly make a variation to a multi-enterprise agreement , 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
1103. This item would insert new Subdivision AE (Variation of multi-enterprise agreement to
remove employer and employees) in the appropriate position in Division 7 of Part 2-4.
Subdivision AE - Variation of multi-enterprise agreement to remove employer and employees
Section 216E--Variation of multi-enterprise agreement to remove employer and employees
with consent
1104. Subsection 216E(1) would mean an employee and affected employees may jointly
make a variation to a multi-enterprise agreement 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.
1105. New subsection 216E(2) would provide that this mechanism is only available in
relation to a multi-enterprise agreement that is 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.
1106. A variation would have no effect unless approved by the FWC (new
subsection 216E(3)).
1107. 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.
1108. 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
1109. 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).
Regulations could be prescribed relating to the signing of variations (eg specifying who
may sign the agreement and type of signature that is permissible).
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Part 22 - Varying enterprise agreements to remove employers and their employees
Section 216EB--When the FWC must approve variation of multi-enterprise agreement to
remove employer and employees
1110. 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
1111. 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
1112. New section 216ED makes clear that an agreement that has been varied under the new
Subdivision remains a multi-enterprise agreement.
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Part 23 - Cooperative workplaces
PART 23--COOPERATIVE WORKPLACES
Overview
1113. Part 23 of the Bill would amend the FW Act to refer to the making of multi-enterprise
agreements in the cooperative workplace bargaining stream and provide for the
variation of cooperative workplace agreements to add employers and employees.
1114. 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
1115. Item 642 of the Bill would include a definition of 'cooperative workplace agreement'
into the Dictionary in section 12 of the FW Act.
1116. This item would provide that a multi-enterprise agreement is a cooperative workplace
agreement if there was no supported bargaining authorisation or single interest
employer authorisation in operation in relation to the agreement immediately before the
agreement was made.
Item 647: After subsection 186(2)
1117. Existing paragraph 186(2)(b) provides that in order to approve a multi-enterprise
agreement the FWC must be satisfied that:
• the agreement has been genuinely agreed to by each employer covered by the
agreement; and
• no person coerced, or threatened to coerce, any of the employers to make the
agreement.
1118. New subsection 186(2AA) would provide that in applying paragraph 186(2)(b), the
FWC must disregard anything done by a person other than one of the employers who
bargained for the agreement if the thing done is authorised by or under the FW Act.
1119. For example, an order made by the FWC to include an employer in a supported
bargaining authorisation or single interest employer authorisation in accordance with
the FW Act would be disregarded for the purpose of determining whether the employer
has genuinely agreed to the agreement. Similarly, protected industrial action taken by
the employer's employees during bargaining for the agreement would not amount to
coercion. The employer having requested its employees to vote to approve the
agreement could be taken into consideration, as could any unprotected industrial action
taken by the employees.
1120. In relation to a cooperative workplace agreement, proposed subsection 186(2A) would
require the FWC to be satisfied that at least some of the employees to be covered by the
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agreement were represented by an employee organisation in relation to bargaining for
the agreement.
1121. As cooperative workplace agreements will cover multiple businesses and their
employees, they will affect the rights and obligations of a large number of individuals.
The requirement that at least some employees are represented by an employee
organisation is intended as a safeguard.
Item 649: In the appropriate position in Division 7 of Part 2-4
Subdivision AC - Variation of cooperative workplace agreement to add employer and
employees
Section 216C - Variation of cooperative workplace agreement to add employer and
employees
1122. 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).
1123. 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.
1124. 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.
Section 216CAA - Terms of the variation must be explained to employees
1125. Proposed subsection 216CAA(1) would provide that, before an employer requests that
affected employees approve the proposed variation, the employer must take all
reasonable steps to ensure that:
• the terms of the agreement as proposed to be varied, and the effect of those terms,
are explained to the affected employees; and
• the explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of those employees.
1126. Proposed subsection 216CAA(2) would provide that, without limiting the requirement
in paragraph 1(b) to provide the explanation in an appropriate manner, the following
are examples of the kinds of employees whose circumstances and needs are to be taken
into account for the purposes of complying with that paragraph:
• employees from culturally and linguistically diverse backgrounds;
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• young employees;
• employees who were not represented during negotiations for the variation.
Section 216CA - Application for the FWC's approval of a variation of a cooperative
workplace agreement to add employer and employees
1127. 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.
Section 216CB - When the FWC must approve a variation of a cooperative workplace
agreement to add employer and employees
1128. New section 216CB would set out the circumstances when the FWC, if satisfied of the
relevant criteria, must approve the variation of the agreement to add the employer and
its 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.
1129. 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.
1130. New subsection 216CB(2) would provide that the FWC must not approve the variation
if the agreement is a greenfields agreement that covers employees in relation to general
building and construction work or if, as a result of the variation, the agreement would
cover employees in relation to general building and construction work.
1131. While the FWC may approve multi-enterprise agreements that are greenfields
agreements that will cover employees in relation to general building and construction
work, it is not intended to allow those agreements to be varied to add additional
employers and employees. It is also not intended that any other cooperative workplace
agreement could be varied in this way to extend coverage of an agreement to general
building and construction work.
1132. New subsection 216CB(3) would provide that the FWC must not approve the variation
if the employer that will be covered by the agreement as a result of the variation is
specified in a supported bargaining authorisation, or a single interest employer
authorisation, in relation to any of the affected employees. This provision would
prevent the FWC from approving a variation of a cooperative workplace agreement
where the varied agreement would cover an employer that is already involved in a
supported bargaining or single interest employer bargaining process in relation to the
affected employees.
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Section 216CC - Determining whether a variation of a cooperative workplace agreement to
add employer and employees has been genuinely agreed to by affected employees
1133. New subsection 216CC(1) would provide that, for the purposes of new
subparagraph 216CB(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 clause 188 (Determining whether an enterprise agreement 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;
• as if subsections 188(2A), (3) and (4) were omitted. These subsections deal with
requirements for certain agreements: to obtain written agreement from any
employee organisations who are bargaining representatives to put the agreement to
a vote (subsection 188(2A); to issue a NERR (subsection 188(3)); and not to request
employees vote to approve an agreement until 21 days after the last NERR is given
(subsection 188(4));
• as if, in subsections 188(4A) (explanation of the terms of an agreement) and (5)
(minor errors may be disregarded), references to subsection 180(5) were references
to section 216CAA (explanation of the terms of the variation to add a new employer
and its employees); and
• as if, in paragraph 188(5)(c) (minor errors may be disregarded for the making of
different kinds of enterprise agreements by employee vote), the reference to
subsection 182(1) or (2) were a reference to subsection 216C(4) (when a variation
of a cooperative workplace agreement to add a new employer and its employees is
made).
1134. 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
(subsection 188(1)) when determining whether it is satisfied that the variation has
been genuinely agreed to by the affected employees (with necessary modifications
set out in new subsection 216CC(2) as set out below);
• 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
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representative, having regard to the employees the agreement is expressed to cover
(new paragraph 188(2)(b));
• be satisfied that the employer has complied with subsection 216CAA in relation to
the variation (the employer has explained the terms of the variation and the effect of
those terms to the affected employees taking into account their particular
circumstances and needs);
• may disregard minor procedural or technical errors made when providing this
explanation to employees; and
• may disregard minor procedural or technical errors that occur when the agreement
is made by a majority vote of employees under subsection 216C(4).
1135. New subsection 216CC(2) would provide that, in taking into account the statement of
principles made under new section 188B for the purposes of determining whether a
variation of a single interest employer agreement to add a new employer and its
employees has been genuinely agreed to:
• 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.
1136. New subsection 216CC(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
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 subsection 216CC(3) would assist in addressing unforeseen
circumstances where further modifications to the approval requirements may be
necessary.
1137. New subsection 216CC(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.
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Section 216CD - When the FWC may refuse to approve a variation of a cooperative
workplace agreement
1138. 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.
Section 216CE - When variation comes into operation
1139. 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)
1140. 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.
1141. Item 650 would ensure this provision operates in respect of an employer and their
affected employees who have become covered by a multi-enterprise agreement
pursuant to a variation to add an employer and employees. Industrial action would be
prohibited from the date on which the variation commences to operate to the nominal
expiry date of the multi-enterprise agreement.
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Part 23A - Excluded work
PART 23A - EXCLUDED WORK
Amendments to the Fair Work Act 2009
Item 651A: Section 12
1142. Item 651A would amend section 12 by inserting signpost definitions for 'applicable
time', by reference to subsection 23B(2), and 'general building and construction work',
by reference to subsection 23B(1).
1143. General building and construction work as defined may also be described as "excluded
work" because such work is excluded from coverage by a multi-enterprise agreement
(other than a greenfields agreement).
Item 651B: At the end of Division 4 of Part 1-2
Clause 23B - Meaning of general building and construction work
1144. New section 23B would set out the meaning of 'general building and construction
work' and 'applicable time'.
1145. New subsection 23B(1) would define 'general building and construction work' as work
done onsite by an employee of an employer that is in the industry of general building
and construction within the meaning of paragraph 4.3(a) of the Building and
Construction General Onsite Award 2020 as in force at the applicable time.
Subparagraph 23(B)(1)(b) would provide for a number of exclusions by reference to
modern awards in force at the applicable time.
1146. New subsection 23B(2) would define 'applicable time' as the start of the day before the
section commences.
1147. While existing provisions of the FW Act refer to the 'building and construction
industry', for example subsection 123(3) and paragraphs 534(1)(e) and 789(1)(e), the
expression 'general building and construction work' used in new Part 23A would not be
intended to have the same meaning as those provisions.
1148. The Department of Employment and Workplace Relations would publish or arrange for
a relevant portfolio agency to publish the relevant clauses of the Building and
Construction General Onsite Award 2020 as at the applicable time to assist relevant
persons to understand and comply with relevant provisions. As at 5 November 2022, it
was also possible to search the FWC's website for historical versions of awards.
Item 651C: Subsection 172(3) (note)
1149. A technical amendment to the note below subsection 172(3) would omit the reference
to "Note" and substitute it with "Note 1", due to the inclusion of a second note by item
651D.
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Part 23A - Excluded work
Item 651D: At the end of subsection 172(3)
1150. Item 651D would insert a new note 2 below subsection 172(3) providing that the FWC
must not approve a multi-enterprise agreement that is not a greenfields agreement if the
agreement would cover employees in relation to general building and construction work
and refers to subsection 186(2B).
Item 651E: Before subsection 186(3)
1151. Item 651E would insert new subsection 186(2B) providing that, when considering
approval of an enterprise agreement, if the agreement is a multi-enterprise agreement
that is not a greenfields agreement, the FWC must be satisfied that the agreement does
not cover employees in relation to general building and construction work.
Item 651F: After paragraph 211(2)(a)
1152. Item 651F would insert a new paragraph 211(2)(aa) providing that in an application for
approval of a variation of an enterprise agreement, the FWC must take into account
subsection 211(3A) if the agreement is a multi-enterprise agreement.
Item 651G: After subsection 211(3)
1153. This item would insert new subsection 211(3A) to provide that subsection 186(2B) has
effect as if the requirement in that subsection that the agreement must not cover
employees in relation to general building and construction work were a requirement
that the agreement as proposed to be varied must not cover employees in relation to
such work.
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Part 24 - Enhancing the small claims processes
PART 24--ENHANCING THE SMALL CLAIMS PROCESSES
Overview
1154. 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)
1155. 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.
1156. 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.
1157. 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).
1158. 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)
1159. 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.
1160. This ensures that access to the small claims procedure is not inadvertently restricted
through the awarding of interest up to judgment.
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Part 24 - Enhancing the small claims processes
Item 653: At the end of section 548
1161. 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.
1162. 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.
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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
1163. 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.
1164. 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.
1165. 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)
1166. 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
1167. 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
1168. 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
1169. 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.
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Part 25 - Prohibiting employment advertisements with pay rate that would contravene the Act
1170. 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.
1171. The term 'fair work instrument' is defined by section 12 of the FW Act.
1172. A legislative note would explain the subsection is a civil remedy provision (see Part 4-
1).
1173. 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').
1174. 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).
1175. 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.
1176. 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.
1177. 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'.
1178. 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.
1179. A legislative note would explain the subsection is a civil remedy provision (see Part 4-
1).
1180. 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
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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.
1181. 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)
1182. 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.
1183. 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)
1184. 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.
1185. 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)
1186. 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.
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Part 25AA- Having regard to certain additional matters in performing functions
PART 25AA - HAVING REGARD TO CERTAIN ADDITIONAL MATTERS IN
PERFORMING FUNCTIONS
Amendments to the Fair Work Act 2009
Item 659AA: Section 577
Item 659AB: At the end of section 577
1187. These items would add new subsection 577(2) to require the FWC, in performing its
function of 'providing assistance and advice about its functions and activities', to have
regard to the need for guidelines and other materials to be available in multiple
languages and the need for community outreach in multiple languages
Item 659AC: After subsection 682(1)
1188. This item would add new subsection 682(1A) to require the FWO, in performing its
education, assistance and advice functions (as set out in paragraph 682(1)(a)), to have
regard to the need for guidelines and other materials to be available in multiple
languages and the need for community outreach in multiple languages.
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Part 25A - Establishment of the National Construction Industry Forum
PART 25A - ESTABLISHMENT OF THE NATIONAL CONSTRUCTION
INDUSTRY FORUM
Overview
1189. Part 25A would amend the FW Act to establish the National Construction Industry
Forum, from 1 July 2023.
Amendments to the Fair Work Act 2009
Item 659A: Section 12
1190. Item 659A would amend section 12 of the FW Act to insert definitions of 'Industry
Minister' and 'Infrastructure Minister'.
Item 659B: After Part 6-4C of Chapter 6
1191. Item 659B would insert new Part 6-4D into the FW Act to establish the Forum as a
statutory advisory body chaired by the Minister.
Part 6-4D - The National Construction Industry Forum
Section 789GZC - Establishment
Section 789GZD - Function of the Forum
1192. The function of the Forum, contained in new section 789GZD, would give the Forum a
broad remit to provide advice to the Government on matters relating to work in the
building and construction industry that are either raised by Government or agreed by
the members. New subsection 789GZD(2) would provide a non-exhaustive list of
matters that the Forum may provide advice on.
Section 789GZE - Membership
1193. The Minister, the Industry Minister (Minister administering the Australian Jobs Act
2013) and the Infrastructure Minister (Minister administering the Infrastructure
Australia Act 2008) would be members of the Forum, along with the members
appointed by the Minister.
1194. New subsection 789GZE(2) would require the Minister to appoint one or more
members who have experience representing employees in the building and construction
industry, and an equal number of members who have experience representing
employers in the building and construction industry, including at least one member who
has experience representing contractors in the building and construction industry and
one member with experience in small to medium sized enterprises in the residential
building sector. This is to ensure equal representation by employee and
employer/contractor representatives on the Forum.
1195. New subsection 789GZE(3) would give the Minister a broad discretion to also appoint
other persons as members of the Forum, which might include relevant statutory
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appointees, representatives of community groups (e.g. disability or women's
representative groups) or other persons with experience relevant to the functions of the
Forum.
Section 789GZF - Appointment by the Minister
1196. Appointments to the Forum would be on a part-time basis and for an initial period of up
to three years. A note explains that a member would be eligible for reappointment at the
end of their term.
Section 789GZG - Chair of the Forum
1197. New section 789GZG would provide that the Minister is the Chair of the Forum.
However, if the Minister is unable to preside at a meeting, or considers it appropriate
for any other reason, the Minister may nominate another Minister to preside at that
meeting and the relevant Minister would be permitted to do so.
Section 789GZH - Meetings
1198. The Chair would be required by new section 789GZH to convene at least two meetings
of the Forum per calendar year, once in the first six months, and once in the second six
months, with the timing of meetings to be determined by the Chair in consultation with
the members. New subsection 789GZH(4) would make it clear that the procedure to be
followed at Forum meetings is to be determined by the Chair in consultation with the
members.
Section 789GZJ - Confidentiality
1199. New section 789GZJ would provide that all members, substitute members, and invited
participants would be subject to an obligation to keep views expressed during meetings
confidential, but this would not prevent members from reporting to the persons, bodies
or organisations they represent or from making announcements the members agree are
in the public interest.
1200. New subsection 789GZJ(3) would require the Forum to publish a public communique
on the Department's website within 14 working days of a meeting.
Section 789GZK - Substitute members
1201. New section 789GZK would provide that if any member of the Forum is unable to
attend a meeting, they would be permitted to nominate a person to attend in their place
and, if the Chair agrees, that person may attend the meeting as a substitute member.
The substitute member would have all the rights and responsibilities of a member at,
and in respect of, the meeting, including disclosure of interest and confidentiality
obligations.
Section 789GZL - Invited participants
1202. New section 789GZL would provide that after consulting with the other members of the
Forum, the Chair would be permitted to invite a person, body or organisation that is not
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a member to participate in a particular meeting and could terminate that invitation at
any time. An invited participant would be entitled to receive travel allowance as if the
person was a member. However, the participation of a person in a meeting does not
make that person a member.
Section 789GZM - Remuneration
1203. New section 789GZM would provide that none of the members of the Forum would be
entitled to receive any additional payments or allowances in respect of their
membership of the forum, with the exception that a member who is not a Minister or a
member of the Parliament would be entitled to receive travel allowance to attend
meetings at the rate prescribed by the regulations. New subsection 789GZM(3) would
make it clear that new section 789GZM does not affect any entitlements of a Minister
or a member of the Parliament under the Parliamentary Business Resources Act 2017.
Section 789GZN - Resignation
1204. New section 789GZN would provide that an appointed member could resign by giving
the Minister a written resignation.
Section 789GZP - Disclosure of interests
1205. Members would be required to disclose material personal interests related to matters
being considered by the Forum and must not participate in any part of a meeting during
which the matter is dealt with.
Section 789GZQ - Termination of appointment
1206. New section 789GZQ would provide that a member could have their appointment
terminated by the Minister on the grounds of misbehaviour, incapacity, bankruptcy etc.,
loss of position or qualification that formed the basis of the reason for their
appointment, failure to comply with confidentiality or interest disclosure obligations or
absence from three consecutive meetings without the approval of the Minister.
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Part 26 - Application, saving, transitional and miscellaneous consequential provisions
PART 26--APPLICATION, SAVING, TRANSITIONAL AND MISCELLANEOUS
CONSEQUENTIAL PROVISIONS
Overview
1207. 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
1208. Item 660 would insert new Part 13 into Schedule 1 (Application, saving and transitional
provisions relating to amendments to this Act) of the FW Act.
Part 13 - Amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better
Pay) Act 2022
Division 1 - Definitions
Clause 55: Definitions
1209. 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 26.
Division 2 - Amendments made by Part 1 of Schedule 1 to the amending Act
Clause 56: Appeal of decisions of the Registered Organisations Commissioner
1210. 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
1211. 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).
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Part 26 - Application, saving, transitional and miscellaneous consequential provisions
1212. 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
1213. 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.
1214. 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.
1215. 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
1216. This item sets out when the provisions of this Part 7 apply.
1217. 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.
1218. 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.
1219. 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.
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Part 26 - Application, saving, 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
1220. 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.
1221. 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: Anti-discrimination and special measures
1222. 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.
1223. 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.
1224. 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
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Part 26 - Application, saving, 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
1225. 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
1226. 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.
1227. 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
1228. 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
1229. 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.
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Part 26 - Application, saving, 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
1230. This item would provide that despite the amendments made by Part 14 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 14 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
1231. 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 of enterprise agreement
Clause 69: Validation of approval of variation of enterprise agreement
1232. 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 70: Serious breach declarations
1233. 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 18
of Schedule 1 had not been made.
Clause 71: Intractable bargaining declarations
1234. This item would allow the FWC to consider conduct engaged in by parties during
bargaining prior to the commencement of the amendments in Part 18 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
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• 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 72: Industrial action
1235. 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.
1236. 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.
1237. 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.
1238. 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.
1239. 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.
1240. 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
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Part 26 - Application, saving, 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.
1241. 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 73: Variation of single interest employer agreement to add employer and employees
1242. 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.
1243. 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 74: Application to existing applications for declarations
1244. 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.
1245. 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.
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Clause 75: Application to existing Ministerial declarations where application for
authorisation not made
1246. 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.
1247. 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 76: Application to existing applications for authorisations
1248. 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 77: Effect of making a single interest employer authorisation
1249. This clause 77 would provide that new paragraph 172(5)(b) (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, if the authorisation was made on or after that commencement.
Clause 78: Application to existing applications to vary authorisations
1250. This clause would provide that section 251 (as amended by Part 21 of Schedule 1 to the
amending Act) does not apply in relation to applications to vary single interest
employer authorisations made before the commencement of that Part.
Clause 78A: Application to authorisations in operation before commencement
1251. New subclause 78A(1) would provide that this clause applies in respect of two or more
employers that were, immediately before the commencement of Part 21 of Schedule 1
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Part 26 - Application, saving, transitional and miscellaneous consequential provisions
to the amending Act, specified in a single interest employer authorisation that is in
operation.
1252. New subclause 78A(2) would provide that, for the purposes of section 172 of the Act,
the employers are taken to be related employers within the meaning of new subsection
172(5A). The effect of this new subclause would be that any single interest employer
agreement made in reliance on that authorisation would be a single-enterprise
agreement, as they were before the amendments in Part 21 commenced.
Clause 78B: Application to certain authorisations made after commencement
1253. New clause 78B would provide that if, because of the operation of clauses 74, 75 or 76
of new Part 13 (Application, saving and transitional provisions relating to amendments
to this Act) of Schedule 1 to the FW Act, the FWC makes a single interest employer
authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:
• Division 10 of Part 2-4 of the Act, as in force immediately before the
commencement, continues to apply with respect to that authorisation; and
• for the purposes of section 172 of the amended Act, the employers specified in the
authorisation are taken to be related employers within the meaning of subsection
172(5A).
1254. The effect of new clause 78B would be that any resulting single interest employer
agreement made by those employers would be a single-enterprise agreement.
Clause 78C: Availability of scope orders
1255. New clause 78C would provide that despite the repeal of subsection 238(2) of the FW
Act (which prohibits a bargaining representative from applying for a scope order if a
single interest employer authorisation is in operation in relation to the agreement) by
Part 21 of Schedule 1 to the amending Act, that subsection continues to apply after the
commencement of Part 21 to proposed single-enterprise agreements in relation to which
a single interest authorisation is in operation.
Division 17 - Amendments made by Part 23 of Schedule 1 to the amending Act
Clause 80A: Approval of enterprise agreement - requirement relating to genuine agreement
of employers
1256. New clause 80A would provide that new subsection 186(2AA) applies to the approval
of an enterprise agreement by the FWC after the commencement of the new subsection.
Section 186 sets out various requirements that the FWC must take into account when
approving enterprise agreements. New subsection 186(2AA) is in Part 23 which
commences at the same time as Part 20, which commences on Proclamation.
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Clause 81: Approval of cooperative workplace agreement--requirement relating to
representation
1257. New clause 81 would provide that the requirement in subclause 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 subclause. It is not intended that these requirements
apply to agreements made before commencement of new subsection 186(2A).
Clause 82: Variation of cooperative workplace agreement to add employer and employees
1258. New clause 82 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 17A: Amendments made by Part 23A of Schedule 1 to the amending Act
1259. New Division 17A would insert application provisions for the purpose of Part 23A
(Excluded work) of Schedule 1 to the Bill.
Clause 82A: Multi-enterprise agreements and general building and construction work
1260. New subsection 186(2B) would require the FWC to be satisfied, when approving a
multi-enterprise agreement that is not a greenfields agreement, that the agreement does
not cover general building and construction work. New clause 82A would provide that
subsection 186(2B) applies in relation to the approval of an enterprise agreement made
after the commencement of Part 23A and the approval of a variation made after the
commencement of Part 23A.
Division 18 - Amendments made by Part 24 of Schedule 1 to the amending Act
Item 83 Small claims procedure
1261. New clause 83 would provide 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 the Bill. That is, the later of the day the Amending Act receives the
Royal Assent and 1 July 2023.
1262. New clause 83 would also provide 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.
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Part 26 - Application, saving, transitional and miscellaneous consequential provisions
Division 19 - Amendments made by Part 25 of Schedule 1 to the amending Act
Item 84 Employment advertisements
1263. New clause 84 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)
1264. Section 12 of the FW Act contains the Dictionary. The concept of "affected employees"
would be central to a variation of an enterprise agreement under proposed Subdivisions
AA, AB, AC, AD and AE of Division 7 of Part 2-4 of the FW Act. For example, it
would inform who may make an application (proposed subsections 216A(1), 216B(1),
216C(1), 216D(1) and 216DB(1)), who may vote to approve the proposed variation
(proposed subsections 216A(2), 216C(2) and 216D(3)), when the variation is made
(proposed subsections 216A(4), 216C(4) and 216D(5)) and when the FWC must
approve the variation (proposed subsections 216AB(1), 216BA(1), 216CB(1) and
216DC(1)).
1265. This item would amend section 12 by repealing the definition of 'affected employees'
and substituting a new definition as follows:
• new paragraph (a) would signpost the definition of 'affected employees' in
subsection 207(2) for a variation of an enterprise agreement made under
Subdivision A of Division 7 of Part 2-4; and
• new paragraph (b) would provide that, for a variation of an enterprise agreement
under Subdivision AA, AB or AC of Division 7 of Part 2-4 (to add an employer to a
supported bargaining agreement or a cooperative workplace agreement), 'affected
employees' means an employee employed by the employer at the time the variation
is made who will be covered by the agreement if the variation is approved (or
made) by the FWC; and
• new paragraph (c) would signpost the definition of 'affected employees' in new
paragraphs 216D(1)(b) and 216DB(1)(b) to define affected employees for a
variation of a multi-enterprise agreement to add a new employer and its employees
under new paragraphs 216D(1)(b) and 216DB(1)(b); and
• new paragraph (e) would signpost the definition of affected employees' in new
paragraph 216E(1)(b) for a variation of a multi-enterprise agreement to remove an
employer and employees.
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Part 26 - Application, saving, transitional and miscellaneous consequential provisions
Item 662: Section 12 (definition of made)
1266. This item would amend section 12 of the FW Act by repealing the definition of 'made'
and inserting a new definition with the following meaning as follows:
• new paragraph (a) would signpost the definition 'of made' in section 182 in relation
to an enterprise agreement; and
• new paragraph (b) would signpost the definition of 'made' in section 209 for a
variation of an enterprise agreement by an employer and its employees under
Subdivision A of Division 7 of Part 2-4; and
• new paragraph (c) would signpost the definition of 'made' in new subsection
216A(4) for a variation of a supported bargaining agreement to add a new employer
and its employees (with consent) under Subdivision AA of Division 7 of Part 2-4;
and
• new paragraph (d) would signpost the definition of 'made' in new
subsection 216C(4) for a variation of a cooperative workplace agreement to add a
new employer and its employees under Subdivision AC of Division 7 of Part 2-4;
and
• new paragraph (e) would signpost the definition of 'made' in new subsection
216D(5) for a variation of a multi-enterprise agreement to add a new employer and
its employees under subclause 216D(5); and
• new paragraph (f) would signpost the definition of 'made' in new
subsection 216E(7) for a variation of a multi-enterprise agreement to remove an
employer and employees (with consent) under Subdivision AE of Division 7 of
Part 2-4.
Item 663: Subdivision A of Division 7 of Part 2-4 (at the end of the heading)
1267. This item would add the words "general circumstances" to the heading of Subdivision
A of Division 7 of Part 2-4 of the FW Act to make clear that the sections in Subdivision
A apply only in respect of general variations to the content of an enterprise agreement
by an employer and its affected employees.
Item 664: Paragraph 279(2)(f)
1268. This item would omit Subdivision references "A and B" in existing paragraph 279(2)(f)
of the FW Act and substitute them with Subdivision references "A, AA, AB, AC, AD,
AE and B" (which contain sections for the variation of an enterprise agreement in
general circumstances by an employer and its affected employee; variation of a multi-
enterprise to add or remove a new employer and its affected employees; and variation
of an enterprise agreement where there is ambiguity, uncertainty or discrimination).
The effect of this item would be that an operative workplace determination cannot be
varied under these Subdivisions (except under section 218 which deals with variation of
an enterprise agreement on referral by the Australian Human Rights Commission).
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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)
1269. 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) (table item 12, column headed "Qualifying period")
Item 667: Subsection 7(8) (after table item 12)
1270. 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.
1271. 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 667A: Paragraph 7(9)(a)
1272. This item would repeal paragraph 7(9)(a) of the SRC Act and substitute it with a new
provision that would outline the circumstances in which employees are taken to have
been employed as a firefighter for the purposes of the Act.
Item 667B: After paragraph 7(9)(b)
1273. This item would introduce new paragraph 7(9)(ba) to clarify that employees covered by
paragraph 7(9)(a)(i) of the SRC Act are taken to have been employed as a firefighter
during any period in which they were a member of a firefighting service.
Item 668: Paragraph 7(9)(c)
1274. 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.
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Part 27 - Amendment of the Safety, Rehabilitation and Compensation Act 1988
Item 669: Application of amendments
1275. 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
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Regulation Impact Statement
Enterprise Bargaining outcomes from the Australian
Jobs and Skills Summit
Regulation Impact Statement
Department of Employment and Workplace Relations
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Regulation Impact Statement
Introduction
Secure, well-paid jobs are a fundamental part of Australia's social and economic fabric. Beyond enabling
financial independence for individuals, fair pay and job security strengthens communities, promotes attractive
careers, and contributes to broad-based prosperity. However, real wage growth in Australia has been held
back over the past decade and has not kept pace with productivity growth and the increased cost of living.
On 1-2 September 2022, the Government held the Jobs and Skills Summit to bring together business, unions,
civil society and state and territory governments to address shared economic challenges. A recommendation
that emerged from the Summit was the need to improve enterprise bargaining and ensure greater access for
employers and employees. Enterprise bargaining is intended to contribute to cooperative workplace
relationships which benefit employees through higher wages and better conditions, and businesses through
increased flexibility and productivity, contributing to higher profits.
The enterprise bargaining framework in the Fair Work Act 2009 aims to support businesses and employees to
tailor their working arrangements to their unique circumstances. The system provides an incentive for
employers, employees, and unions to pursue more productive ways of working in exchange for higher wages
and better conditions for employees. Yet the framework is no longer working effectively and is in decline--
fewer businesses are making new enterprise agreements or renegotiating them upon their expiry, and fewer
workers are covered by them.
According to the Australian Bureau of Statistics, the proportion of employees covered by enterprise
agreements has decreased from its historical peak of 43 per cent in 2010 to 35 per cent in 2021. Over the same
period, award reliance has increased from about 15 per cent to 23 per cent.
Enterprise bargaining works for everyone when conducted between equal parties. This is achieved by ensuring
the legal framework for collective bargaining recognises and takes steps to address asymmetries in the relative
strength of the bargaining parties.
Australia's enterprise bargaining system should enable both productivity growth and secure, well-paid work,
by allowing workers to negotiate fair pay and conditions above the safety net of minimum employment
conditions. It is the intent of this new legislation, the impact of which is dealt with in the sections below, to
reverse this decline of enterprise agreements and increase access to enterprise bargaining for employees and
employers.
The Department engaged with the Office of Best Practice Regulation throughout the policy development
process. The regulatory impact statement was at the following stages of development at key decision points:
• Government approval - Draft
• Draft bill exposure to Senior Officials and the Council on Industrial Legislation - First pass
• Decision of Government - Second pass
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Regulation Impact Statement
The current collective bargaining framework
The Fair Work Act commenced operation, in part, on 1 July 2009, and in full on 1 January 2010. In 2008, when
the Fair Work Bill was introduced into Parliament, the world was in the midst of the global financial crisis. Due
to heightened uncertainty globally, the pace of Australia's economic growth had slowed significantly, and the
unemployment rate had risen sharply. The Government at the time believed it was important to deliver
certainty and stability regarding workplace relations laws through the Fair Work Act. 7
The Fair Work Act replaced a workplace relations system that had evolved over several major reforms in the
1990s. Those reforms culminated in amendments to the Workplace Relations Act 1996 that implemented the
controversial Work Choices reforms, which provided for a new system of individual agreements operating
outside of the then safety net of awards and enterprise agreements. The Fair Work Act was intended to chart a
middle course between the various competing stakeholder views and balance the needs of flexibility for
employers with the need for fairness for employees.
In part, the intention of the Fair Work Act was to promote productivity and fairness through enterprise
bargaining, including by:
• Providing employees and employers with the right to appoint persons of their choice to represent
them in negotiations for a proposed enterprise agreement;
• Facilitating good faith bargaining and the making of enterprise agreements including through making
bargaining orders and dealing with bargaining disputes where the parties request assistance;
• Enabling low-paid bargaining orders in order to increase bargaining outcomes in low paid sectors; and
• Ensuring that employees covered by an agreement are better off overall against the new safety net.
One of the central pillars of the workplace relations framework has been, for most of the last 30 years,
bargaining at the enterprise level. The emphasis on enterprise bargaining has ebbed and flowed but has been
a consistent feature of the framework throughout.
Enterprise bargaining is the process of negotiation between an employer, their employees and their bargaining
representatives (e.g. unions) to come to an agreement on minimum terms and conditions applicable to their
enterprise. Those minimum terms and conditions are formalised through the making and approval of an
enterprise agreement. When in operation, an enterprise agreement sets out the minimum terms and
conditions of employment between a group of employees and one or more employers. An enterprise
agreement can also provide for matters relating to the relationship between an employer or employers and
the unions covered by the agreement.
There are four bargaining streams in the existing framework:
• Single-enterprise stream;
• Single-interest employer authorisation stream;
• Multi-enterprise agreement stream; and
• Low-paid bargaining stream.
Please refer to the flow chart of the current bargaining streams at Annexure A.
7
Senate Standing Committee on Education, Employment and Workplace Relations, Inquiry in to the Fair Work
Bill 2008, February 2009, accessed 12 October 2022, p 6.
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Regulation Impact Statement
Single-enterprise bargaining
Under the single-enterprise agreement stream, an employer, or two or more employers that are single interest
employers, may make an enterprise agreement with the employees who are employed at the time the
agreement is made and who will be covered by the agreement. 8
Two or more employers are single interest employers if the employers are:
• Engaged in a joint venture or common enterprise;
• Related bodies corporate; or
• Specified in a single interest employer authorisation that is in operation in relation to the proposed
enterprise agreement concerned.9
Multi-enterprise bargaining
Single-interest employer authorisation stream
The single-interest employer bargaining stream under the Fair Work Act allows access to multi-employer
bargaining for a limited range of employers. Access to this stream is available where two or more employers
(that are not single interest employers) but have a close connection to one another seek to bargain (such as
franchisees or employers with closely aligned industrial relations frameworks). Protected industrial action can
be taken in this stream.
To use this process employers must apply to the Minister for a declaration that they may bargain together
and/or obtain a single interest employer authorisation from the Fair Work Commission. The Fair Work
Commission must make a single interest employer authorisation if either:
• The employers are franchisees of the same franchisor or related bodies corporate of the same
franchisor (or any combination of these), or
• The employers are specified in a Ministerial Declaration.
Multi-enterprise agreement stream
Access to the multi-enterprise bargaining stream is available to two or more employers that are not single
interest employers, allowing then to make an enterprise agreement with the employees who are employed at
the time the agreement is made and who will be covered by the agreement. 10 Employers have to consent/opt-
in to bargaining for a multi-enterprise agreement. Protected industrial action is not permitted in the current
multi-enterprise bargaining stream. Since 2019 there have only been 49 agreements made using this stream in
industries including education, health, and financial and insurance services.
Low-Paid Bargaining Stream
The Fair Work Act currently includes a special multi-enterprise bargaining stream for low-paid employees who
have not historically had access to collective bargaining or who face substantial difficulty in bargaining at the
enterprise level. To access this stream, a bargaining representative or union entitled to represent the industrial
interests of an employee in relation to work to be performed under a proposed multi-enterprise agreement
can apply for a low-paid authorisation.
If granted, a low-paid authorisation makes additional rules applicable to certain employers in relation to a
multi-enterprise agreement. Employers specified in a low-paid authorisation will be obliged to bargain in good
faith and will be required to give employees a notice of employee representational rights (which is not
generally the case for multi-enterprise agreement making).11
8
Fair Work Act 2009, subsection 172(2).
9
Fair Work Act, subsection 172(5).
10
Fair Work Act, subsection 242(1).
11
Fair Work Bill 2008, Explanatory Memorandum, para. 1004.
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Regulation Impact Statement
An application for a bargaining order cannot be made in relation to a proposed multi-enterprise agreement
unless a low-paid authorisation is in in operation in relation to the agreement. 12 The Fair Work Commission
also has additional powers to facilitate bargaining for the agreement (including on its own initiative).
Facilitating bargaining
Bargaining under the Fair Work Act is generally left to the bargaining parties to determine for themselves the
course that bargaining takes. The Fair Work Act creates a framework of good faith bargaining obligations and
other mechanisms to assist parties bargain efficiently and to resolve disputes where they occur.
The Fair Work Act sets out the various good faith bargaining requirements that a bargaining representative for
a proposed enterprise agreement must meet. The good faith requirements include:
• attending and participating in meetings at reasonable times;
• disclosing relevant information (other than confidential or commercially sensitive information) in a
timely manner;
• responding to proposals made by the other bargaining representatives in a timely manner;
• giving genuine consideration to proposals made by other bargaining representatives;
• refraining from capricious and unfair conduct that undermines freedom of association or collective
bargaining; and
• recognising and bargaining with the other bargaining representatives.
However, as an exception to the requirements, the Fair Work Act does not require a bargaining representative
to make concession during bargaining for an agreement, or require a bargaining representative to reach
agreement on the terms that are to be included in the agreement.
Some oversight functions are placed in the independent Tribunal, the Fair Work Commission. The Fair Work
Commission can assist parties to initiate bargaining (by the making of Majority Support Determinations),
resolve disputes about the bargaining and agreement making process (by issuing bargaining orders) and
bargaining itself (by dealing with bargaining disputes). The Fair Work Commission also has responsibility for
assessing agreements that have been made and, where satisfied of the relevant statutory criteria, approving
agreements to give them the necessary legal effect.
There are currently a number of mechanisms within the Fair Work Act which seeks to remedy bargaining
disputes. The Fair Work Commission is empowered with alternate dispute resolution mechanisms such as
mediation and conciliation, alongside the right to make a recommendation or express an opinion. 13 The
utilisation of alternate dispute resolution frameworks allows for bargaining parties to access an informal and
fair system to discuss issues with an impartial member facilitating discussion. The use of mediation and
conciliation by the consent of both parties is preferred by the Fair Work Commission as this allows bargaining
parties to develop mutually beneficial outcomes to disputes, and empowers them to find common ground
when negotiating a new agreement.
Agreement content
Since the enterprise-level bargaining system was introduced in 1993, there have been various restrictions on
the content of enterprise agreements. These restrictions have sought to balance the right of employees and
unions to bargain for higher wages growth and improved working conditions, with the right of employers to
retain managerial prerogative in the operation of their organisations.
Agreements may only include clauses pertaining to the employer-employee relationship, employer-union
relationship, terms about deductions from wages, and terms about how the agreement will operate. The Fair
Work Act requires all enterprise agreements to include terms on flexibility, the employee right to consultation,
who is covered by its terms and conditions, and the Nominal Expiry Date of the agreement. An agreement
12
Fair Work Act, subsection 229(2).
13
Fair Work Act, subsection 595(2).
Fair Work Legislation 4 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
must not derogate from the national employment standards (NES) and must contain a procedure for settling
disputes about matters arising under the agreement and the NES.
Under the Fair Work Act, an enterprise agreement cannot include an unlawful term. Unlawful terms include;
discriminatory terms, objectionable terms, terms about bargaining services fees, or restricting emergency
management bodies from managing volunteers, and terms regarding right of entry and unfair dismissal.
Where did enterprise bargaining come from?
Enterprise level bargaining arose from the wage and price restraints of the 1980s as a solution for unions to
exceed government wage controls. Government, unions, and business all considered that it would improve
productivity in workplaces. Wage and price fixing was a response to the 'stagflation' of the 1970s. Prior to this,
collective bargaining sometimes occurred under the auspices of conciliation and arbitration.
The original policy intent of enterprise bargaining was to 'provide parties at the industry and workplace level
with the opportunity to reach agreements directed at lifting productivity and competitiveness'. 14 Agreements
which did not directly link pay increases to improving productivity were discouraged, and agreements were
encouraged to promote workplace change.
The Fair Work Act promoted collective bargaining over individual bargaining and agreement-making. When the
Bill was introduced to Parliament, the Government at the time pointed to evidence that demonstrated that
collective bargaining and higher productivity were correlated.15 Workplace bargaining was seen as providing a
framework to assist the redesign of working arrangements and ensuring workers were employed more
productively.
Benefits of collective bargaining
This statement does not analyse all the positive effects of collective bargaining but highlights those areas of
immediate relevance.
Collective bargaining leads to better wage outcomes
According to table 1 in the Australian Bureau of Statistics (ABS) report Wage Setting Methods and Wage
Growth in Australia, enterprise agreements provide for the highest percentage of wages growth, in
comparison to any other industrial instrument - they contribute almost half of total aggregate wage growth.16
Employees covered by an enterprise agreement earn 71 per cent more on average than those on Modern
Awards, which provide the minimum terms and conditions for workers, as shown in Chart 1.
Chart 1: Median weekly total cash earnings for employees who have their pay set by a collective agreement or
an award, May 202117
Employees who have their pay set by Employees who have their pay set by
a collective agreement an award
Total $1,450.20 $849.20
The Department of Employment and Workplace Relations' Workplace Agreements Database shows that
enterprise agreements continue to have higher wage increases than the economy-wide average, despite the
challenging economic and employment conditions and a general decline in bargaining. In the most recent
14
Australian Government, Accord Agreement 1993-1996, 1993, subsection 5(3).
15
Fair Work Bill 2008, Explanatory Memorandum, para. 189.
16
Australian Bureau of Statistics (ABS), Wage Setting Methods and Wage Growth in Australia, ABS website,
2018, accessed 6 October 2022.
17
ABS, Employees Earnings and Hours, May 2021, published and unpublished, TableBuilder.
Senate 5 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Trends in Federal Enterprise Bargaining publication, the Average Annualised Wage Increase for enterprise
agreements was 2.8 per cent in the June Quarter 2022, compared to 2.6 per cent economy wide. 18
Collective bargaining is a human right
As well as clear benefits to employers and employees from bargaining, Australia has obligations to encourage
and promote bargaining. Australia was a founding member of the International Labour Organization (ILO) and
is a major budget contributor. The ILO is a tripartite United Nations agency that exists to bring together
governments, employers, and workers, is responsible for setting labour standards and promoting decent work
for all women and men and has made collective bargaining a fundamental principle and right at work.
Australia has ratified 58 ILO Conventions including the Right to Organise and Collective Bargaining Convention.
On collective bargaining, the ILO stated:
"When effective, collective bargaining can help build trust and mutual respect between employers,
workers and their organisations, and contribute to stable and productive labour relations. At the
same time, weak and ineffective collective bargaining institutions may lead to a rise in labour
disputes, with economic and social costs."19
Freedom of association and the effective recognition of the right to collective bargaining are fundamental
rights.20 All members of the ILO have an obligation to respect, promote and realise this principle. Measures
appropriate to national conditions shall be taken, where necessary, to encourage and promote the full
development and utilisation of machinery for voluntary negotiations. Negotiations occur 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. As Australia has ratified this convention it has undertaken
to apply the Convention in national law and is obligated to report on collective bargaining at regular intervals.
Collective bargaining contributes to equality and positive health outcomes
OECD and academic research show that countries that enable both single and multi-employer bargaining have
lower wage inequality and higher employment, particularly for vulnerable groups such as women, and for
those in temporary or part-time work. Research also shows that sector-level bargaining is necessary to
negotiate targeted increases in female-dominated and low-paid sectors. It has also been shown that collective
bargaining is likely to have positive effects on health. 21
Collective bargaining can lead to better productivity outcomes
Economic growth is driven by growth in productivity, participation and population. Productivity measures the
efficiency of production. When productivity grows it allows employers to pay higher wages and hire more
workers. In the long term, productivity growth is a key driver of living standards.
Over the past 30 years, labour productivity growth has accounted for around 80 per cent of Australia's real
GDP per person growth. The link between productivity and wages makes productivity growth a vital area for
the industrial relations system to focus on. Wages and productivity are highly correlated.22 Real wages growth
is an important indicator of living standards. If wage growth runs ahead of productivity growth, there is a risk
of creating inflationary pressure on the economy, making the wage growth unsustainable in the long run.
18
Department of Employment and Workplace Relations (DEWR), Workplace Agreements Database; Trends in
Enterprise Agreements - June Quarter 2022, DEWR website, accessed 17 October 2022.
19
International Labour Organisation (ILO), Collective Bargaining: A Policy Guide, International Labour Office,
Governance and Tripartism Department, Conditions of Work and Equality Department, Geneva, 2015, p. 4.
20
ILO, Declaration on Fundamental Principles and Rights at Work, 1998, subsection 2(a).
21
L Sochas and A Reeves, 'Does collective bargaining reduce health inequalities between labour market
insiders and outsiders?' Socio-Economic Review, 2022, 00(0): https://doi.org/10.1093/ser/mwac052, p:9,;
Organisation for Economic Co-operation and Development (OECD), The role of collective bargaining systems
for labour market performance, 2018; OECD, Can collective bargaining help close the gender wage gap for
women in non-standard jobs?, 2020
22
Treasury, Analysis of wage growth, Treasury Working Paper, November 2017, accessed 14 October 2022.
Fair Work Legislation 6 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
1. What is the problem you are
trying to solve?
The utilisation of the enterprise bargaining system under the Fair Work Act is in decline. Without reversing the
decline in enterprise agreement uptake, it is likely that real wages will continue to stagnate, wages inequality
will continue, and employers will miss out on unrealised business flexibility and productivity gains.
In a confidential submission to the Jobs and Skills Summit, a union observed that the current bargaining
framework no longer delivers pay rises in line with productivity growth. The union also said the system is
inaccessible to many sections of the workforce and unnecessarily complex for both employers and employees.
As a result, the system is no longer fit for purpose and is simply incapable of restoring sustainable wage
growth. A large employer organisation also raised wider concerns with the level of complexity and prescription
in the regulation of work in Australia, not present in other OECD countries.
The decline in enterprise bargaining
The enterprise agreement system has evolved since its introduction in 1993 through legislative amendments
and case law. The Department of Employment and Workplace Relations' Workplace Agreements Database has
recorded the decline in the number of new agreements made from 2014 onwards, with only around half as
many new agreements made in 2020-21 as were made in 2013-14.
Chart 2 shows that enterprise bargaining and coverage steadily increased from 1996 to 2008 while businesses
moved into the bargaining system (Phase 1). From 2008 to 2012, there was a spike in new agreements as
employers sought to either 'lock in' agreements under the Workplace Relations Act 1996 or move to
agreements made under the Fair Work Act (Phase 2). While coverage remained relatively steady between
2012 and 2014, a decline in new agreements made was recorded from 2014 onwards (Phase 3).
The proportion of employees covered by enterprise agreements has decreased from its historical peak of 43.4
per cent in 2010 to 35.1 per cent in 2021.23
Over the same period, reliance on Modern Awards (which establish the minimum pay rates and conditions of
employment by industry or occupation) to set employees' wages and conditions of employment has increased
from 15.2 per cent to 23.0 per cent. Noting this together, the decline in the number of employees covered by
enterprise agreements is a result of a reduction in new or renegotiated agreements being made and approved.
However, there has been an increase in the number of employees covered by current agreements since the
start of 2018, which is mainly due to many large agreements being renewed after the parties had relied on
their nominally expired agreements for an extended period. The increase in new agreements was particularly
in the retail sector (like the Woolworths Supermarket Agreement 2018) and in the education and higher
education sectors (with 13 new university enterprise agreements being made).
Agreements continue to operate after their nominal expiry date unless they are replaced with a new
enterprise agreement or terminated by the Fair Work Commission. The provisions within an enterprise
agreement continue to apply to the parties covered by the agreement after the nominal expiry date, and are
fully enforceable even if there have been changes made to the relevant Modern Award. Although the base
rate of pay in an enterprise agreement cannot be less than the base rate of pay the employee would receive
under the modern award, agreements can reduce other conditions of the employment, such as penalty rates
and allowances, as a trade-off for pay increases, and this benefit diminishes and is then lost when agreements
continue to operate long after their nominal expiry date - this can then result in employees' overall pay and
conditions being less under an agreement than they would receive under the award. Most agreements provide
23
ABS, Employee Earnings and Hours, Australia, May 2000-2021, published data.
Senate 7 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
wage increases for each year the agreement is within its nominal expiry date, and it is uncommon for wage
increases to be agreed for the years after the agreement nominally expires, meaning most agreements
continue to operate without further increases to wages24.
Chart 2: Current (not expired or terminated) federal enterprise agreements and employees covered -
June 1996 to June 202225
30,000 3,000
25,000 2,500
Employees ('000)
20,000 2,000
Agreements
15,000 1,500
10,000 1,000
5,000 500
0 0
Agreements Employees ('000)
Notwithstanding the recent increase in the overall number of employees covered by enterprise agreements,
the proportion of employees covered by agreements has fallen substantially over the last decade.
There are many possible reasons for the decline in enterprise bargaining, including:
• employers and employees choosing not to replace existing agreements
• the procedural complexity and the technical nature of the system
• cost and perceptions around delays in obtaining approval of agreements, including the potential for
protected industrial action26
• employers who are inclined to bargain have already done so (meaning there may be relatively few
employers interested in bargaining that don't already have an agreement)
• loopholes and inefficiencies in the process, and
24
Noting that agreement wages cannot fall below the relevant Modern Award base rate of pay.
25
Department of Employment and Workplace Relations, Workplace Agreements Database (WAD). Note: The
chart shows the number of agreements current (not expired or terminated) at the end of each quarter
between June 1996 and June 2022 and employee figures are based on number of employees on lodgment to
the Fair Work Commission or its predecessors. It does not include agreements that have passed their expiry
date but are still in use, as the WAD does not have this information.
26
Protected industrial action is industrial action that can be legally taken and must meet certain requirements
specified under the Fair Work Act, including that it is in relation to bargaining for a new enterprise agreement
where the existing agreement has passed its nominal expiry date, a majority of employees have voted for it in
a secret ballot, and the action is taken in support of matters that can be legally included in an enterprise
agreement.
Fair Work Legislation 8 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
• declining union membership.
Chart 3 shows that enterprise agreements remain the dominant industrial instrument, 27 however the use of
common law contracts is now the most common method of pay setting. 28 Nearly 40 per cent of employees on
enterprise agreements have their pay and conditions set by nominally expired agreements which have not
been replaced--indicating that parties are choosing not to bargain. Enterprise agreement coverage has clearly
declined over the last decade. This coverage is being replaced by Modern Awards and common law contracts.
Chart 3: Pay setting mechanisms in Australia, May 202129
All employees, proportion of employees - method of setting pay
45.0
40.0
35.0
All employees, proportion of employees -
method of setting pay Award only (%)
30.0
All employees, proportion of employees -
25.0 method of setting pay Collective
agreement (%)
20.0 All employees, proportion of employees -
method of setting pay Individual
arrangement (%)
15.0
All employees, proportion of employees -
method of setting pay Owner manager of
10.0 incorporated enterprise (%)
5.0
0.0
2012 2014 2016 (a) 2018 2021
Chart 2 illustrates that one cause of the decline in employees covered by enterprise agreements has come
from the reduction in new or renegotiated agreements being made and approved. This is particularly the case
for small enterprises, where over 55 per cent of agreements that nominally expired in 2020 were not replaced.
Replacement rates are also low for medium and large businesses--39 per cent of medium and 40 per cent of
large businesses have not replaced their enterprise agreements that nominally expired in 2020. The industries
27
ABS data refers to an enterprise agreement as 'collective agreement' and common law contract as
'individual arrangement'. A common law contract is not an industrial instrument. (see ABS, A guide to
understanding employee earnings and hours statistics, May 2021); A common law contract is not an industrial
instrument for the purposes of the Fair Work Act.
28
This indicates that individual agreements (common law contracts underpinned by the relevant award) may
be easier and preferable to making an enterprise agreement. Individual agreements may also be more
attractive to employers as policies can be adjusted more easily and remain subject to greater managerial
prerogative.
29
ABS, Employee Earnings and Hours, Australia, May 2021. Note: Data for 2016 is based on indicative
comparable estimate proportions.
Senate 9 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
with the highest non-replacement rate are Accommodation and Food Services (80.8 per cent not replaced) and
Administrative and Support Services (74.8 per cent not replaced). 30
Inequality continues to grow
Australia's gender pay gap, as measured by average weekly ordinary full-time earnings, is currently 14.1 per
cent.31 OECD and academic research show that countries that enable both single and multi-employer
bargaining have lower wage inequality and higher employment, particularly for vulnerable groups such as
women, and for those in temporary or part-time work.
Research from the Bankwest Curtin Economics Centre and the WGEA shows that the combination of gender
concentration and salary differences between men and women within industries contribute to the gender pay
gap. If more women were to work within a high-paying industry, the net effect would help decrease the
gender pay gap. Research also shows that sector-level bargaining is necessary to negotiate targeted increases
in female-dominated and low-paid sectors.32
Wages growth is not matching productivity growth
Economic prosperity is promoted by ensuring growth in three interrelated areas: productivity, wages and
employment. The Fair Work Act links the achievement of productivity and fairness through an emphasis on
enterprise-level collective bargaining. Accordingly, it is prudent to explore the relationship between collective
bargaining, productivity and wages.
Productivity is a measure of the efficiency of production, having regard to the relationship between inputs and
outputs. It increases if more output is produced using the same amount of inputs (e.g. working hours, capital),
or the same amount of output is produced using fewer inputs.
Productivity growth is influenced by a range of factors including economic stability (e.g. low unemployment,
low inflation) and capabilities (e.g. skills, technology, and infrastructure). It can also be influenced by factors
related to workplace relations such as incentives (e.g. regulatory burden, barriers to competition) and
resilience (e.g. flexibility of the workplace relations system, ability to absorb shocks). Labour productivity is
driven by capital accumulation, research and development, technologies, innovation, management practices
and work arrangements. However, all these can be influenced to varying degrees by an enterprise agreement,
especially those factors relating to how employees work.
Labour productivity and real wages growth have historically been highly correlated, with labour productivity
considered to be one of the key drivers of real wages growth in the long-term.33 If workers are more
productive relative to their cost to firms, it allows employers to pay higher wages and take on more workers
due to the overall increase in income. This, in turn, places upwards pressure on wages. Real wages growth,
which is wages growth after accounting for inflation, is an important indicator of living standards.
In some studies, collective bargaining and productivity appear to be correlated. A study undertaken by Tseng
and Wooden found that firms with employees on collective agreements experienced, on average, a 9 per cent
increase in productivity levels, when compared to firms with employees on awards. 34 The authors point out,
however, that their results do not prove that collective bargaining causes higher productivity but that rather,
collective bargaining and higher productivity are correlated. Similarly, based on a survey of 281 Australian
enterprises, Fry, Jarvis and Loundes found that organisations entering into collective agreements with their
30
Department of Employment and Workplace Relations, Workplace Agreements Database data.
31
Workplace Gender Equality Agency, Gender Pay Gap Data, website, accessed 16 October 2022.
32
OECD, Can collective bargaining help close the gender wage gap for women in non-standard jobs?, 2020
33
Treasury, Analysis of wage growth, Treasury Working Paper, November 2017, accessed 14 October 2022.
34
Y-P Tseng and M Wooden, Enterprise Bargaining and Productivity: Evidence from the Business Longitudinal
Survey, Melbourne Institute Working Paper No. 8/01, July 2001, p.28.
Fair Work Legislation 10 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
workers, reported substantially higher levels of self-assessed labour productivity relative to their
competitors.35
Productivity and Wages 'Decoupling'
As noted previously, the longstanding relationship between labour productivity and wages growth appears to
be breaking down or 'decoupling'. The implication is that workers are not benefitting proportionally from
productivity improvements in the form of increased wages.
Productivity growth measures can be volatile, cyclical and subject to revisions. The ABS advises that
productivity growth cycles be used to assess changes in labour productivity over time. Productivity growth has
been subdued since the early 2000s and remains below the peak of the 1990s. In the latest productivity
growth cycle (2009-10 to 2017-18), the average annual growth was 1.7 per cent, lower than the 2.2 per cent
growth rate from 1998-99 to 2003-04 but slightly above the annual average growth of 1.3 per cent from
2003-04 to 2009-10.36
Decoupling is not a phenomenon exclusive to Australia -- it has become widespread across other advanced
economies. This implies that ongoing decoupling is the result of underlying long-term changes in the global
economy. Over the last decade, productivity in Australia has increased across the economy by 11 per cent
while real wages have grown by only 0.1 per cent and have declined substantially over the past year. 37 On a
variety of measures, wage growth in Australia has been low in the last decade compared with the decade
prior. This has been true across states and territories, across industries and across both the public and private
sectors.38
The rate of unemployment declined steadily over the life of the Fair Work Act. In mid-2009, shortly after the
legislation received Royal assent, unemployment was at 5.8 per cent. 39 Currently, the unemployment rate is
3.5 per cent, one of the lowest rates in 48 years (having dropped to 3.4 per cent in July 2022), due in part to
the rebounding of the labour market after the Covid-19 pandemic lockdowns were lifted. However, unlike in
the past, the low unemployment rate has not translated into higher real wages for workers with inflation
significantly higher than average wage increases. The Wage Price Index increased by 2.6 per cent over the year
to June 2022, while inflation increased by 6.1 per cent over the same period, meaning that real annual wages
growth decreased by 3.5 per cent.40
The decline in enterprise bargaining is of considerable concern. While productivity growth does not
automatically lead to real wages growth, given the apparent correlation between labour productivity and real
wage growth, and the relationship between labour productivity and collective bargaining, there is capacity to
build on the existing framework to reverse the decline in enterprise bargaining and to ultimately influence real
wage growth. Without reversing the decline, fewer employees will be covered by an enterprise agreement and
therefore will miss out on the benefits that bargaining can provide.
Employers can also benefit from increase bargaining through the potential to increase productivity. Enterprise
agreements are a vehicle for enhancing labour productivity and innovation as they allow the parties to agree
to greater flexibility than exists under awards, potentially improving resource allocation within firms.
Enterprise agreements can also provide certainty about regulations and minimum standards, providing a
system that can assist bargaining parties to navigate complex and adversarial processes. Wages and conditions
also provide for powerful incentives for training and mobility between businesses, industries and locations.
35
T Fry, K Jarvis and J Loundes, Are Pro-Reformers Better Performers?, Melbourne Institute Working Paper No.
18/02, September 2002.
36
ABS, Australian System of National Accounts 2020-21.
37
G Jericho, Ten Years of productivity growth, but no increase in real wages, The Australia Institute;
Treasury, Jobs and Skills Summit issues paper, August 2022, accessed 14 October 2022.
38
Treasury, Analysis of wage growth, Treasury Working Paper, November 2017, accessed 14 October 2022.
39
ABS, Labour Force, 6202.0, Australia, July 2009
40
ABS, Wage Price Index, Australia, June 2022; ABS, Consumer Price Index, June 2022.
Senate 11 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Historically, enterprise agreements have delivered equivalent, or higher, wage increases than the economy-
wide Wage Price Index, as shown in Chart 4. Greater coverage of enterprise agreements means more
employees will get access to higher wages and higher wages growth. According to the Department's
Workplace Agreements Database, enterprise agreements continue to have higher wage increases than the
economy-wide average. In the most recent Trends in Federal Enterprise Bargaining publication, the Average
Annualised Wage Increase (AAWI) for new enterprise agreements was 2.8 per cent in the June quarter 2022,
compared to a 2.6 per cent annual increase in the Wage Price Index. 41
Chart 4: Yearly Average Annualised Wage Increases (AAWI) and Wage Price Index (WPI) 42
AAWI and WPI
5
4.5
4
3.5
Percentage
3
2.5
2
1.5
1
0.5
0
AAWI WPI
Power imbalance and unintended loopholes
Between 1994 and 2020, union density in Australia decreased from 40 per cent to 14 per cent. 43 While there
may be some relationship between bargaining coverage and union density, it is acknowledged that the
correlation between the two can vary due to a variety of other factors such as sectoral and workforce
composition, firm characteristics and national traditions and practices.44 While lower union membership may
result in unions having less resources to devote to collective agreement negotiations, thus reducing bargaining
41
Department of Employment and Workplace Relations (DEWR), Workplace Agreements Database; , DEWR
website, accessed 17 October 2022.
42
Department of Employment and Workplace Relations, Workplace Agreements Database; Australian Bureau
of Statistics, Wage Price Index, Australia, seasonally adjusted June 2022. AAWI is an estimate of the average
annualised wage increases and is based on those federal enterprise agreements that provide quantifiable
wage increases over the life of the agreement. AAWI calculations thus exclude agreements where wage
increases cannot be quantified, for example they are linked to future events (such as each Fair Work
Commission Annual Wage Review). For WPI, the December quarter result has been used as the point of
comparison with the AAWI Increases for All Agreements. Data for 2022 is to 30 June 2022 (latest available
data).
43
ABS, Trade union membership, August 2020.
44
C Schnabel, Union Membership and Collective Bargaining: Trends and Determinants, Institute of Labor
Economics, IZA DP No. 13465, July 2020.
Fair Work Legislation 12 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
power, the impact of lower union density on rates of collective bargaining is mixed. The Reserve Bank of
Australia notes, for example, that despite declining union membership, unions can still be effective in
negotiating larger wage increases.45
The enterprise bargaining framework should be fit for purpose and promote the ability for businesses and
employees to bargain on an equal footing. Loopholes which have been discovered, or have developed, are
contributing to the power imbalance in bargaining. Evolving case law and over a decade of use has revealed
loopholes and unintended usage of provisions in the Fair Work Act. In many cases these have contributed to
the power imbalance in collective bargaining. For example, the 2015 Aurizon case expanded the ability of
employers to apply to unilaterally terminate, or threaten to terminate, an expired enterprise agreement
during bargaining for a new one to encourage employees to accept inferior wages and conditions. 46 A
bargaining system should evolve to accommodate changes in the labour market, the economy and society
over time.
Under section 225 of the Fair Work Act, if an enterprise agreement has passed its nominal expiry date, an
employer, employee, or union covered by the agreement may unilaterally apply to the Fair Work Commission
to terminate the enterprise agreement. The ability to apply to - or even just the threat to - terminate an
enterprise agreement has been used by some employers as an unfair bargaining tactic that undermines good
faith bargaining. The tactic is unfair because, should an agreement be terminated, employees can revert to
the terms and conditions in the relevant Modern Award when an agreement is terminated, which are usually
significantly lower. This can influence employees to accept a new agreement during bargaining with inferior
pay and conditions to the one which was terminated or that they otherwise may have continued to negotiate
for.
Facilitating bargaining
Bargaining disputes, where the employer and employees cannot agree on terms of an agreement, can
significantly delay bargaining and have negative impacts on the relationship between the parties. Data from
the Department of Employment and Workplace Relations shows that the median time taken to bargain for an
agreement ranges from 31 days for a small business to 200 days for a large business. However, where there is
protracted bargaining this time can be significantly extended. For example, in the maritime industry,
enterprise agreement negotiations took on average 295 days before 2018 and 525 days since 2018. 47
Protracted bargaining can lead to protracted industrial action, which can be costly and disruptive.
Noting the good faith bargaining requirements discussed above, surface bargaining is where a party "goes
through the motions of bargaining without any genuine attempt to make an agreement". 48 For example,
throughout the bargaining process an employer, as a pretence may actively participate in meetings with
employees or employee representatives, however at the time of committing to the agreement, they refuse to
do so. In the 2015 decision of APESMA49 the Full Bench of the Fair Work Commission addressed the issue of
the level of engagement a party has with the bargaining process. The Full Bench made bargaining orders
ordering (amongst other things), that the employer was to provide the employee representative with a
genuine proposal which includes the matters that it may be prepared to accept in an enterprise agreement,
concluding that:
Making of an order in the terms ... would assist the bargaining process and allow the parties to better
assess the possibilities of an agreement being made. It does not require the company to make
45
J Bishop and I Chan, Is Declining Union Membership Contributing to Low Wages Growth?, Reserve Bank of
Australia, 2019.
46
Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540
47
Productivity Commission, Lifting Productivity at Australia's container ports - draft report, September 2022,
p.22.
48
Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Pty
Ltd [2015] FWCFB 1451, [12].
49
Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Pty
Ltd [2015] FWCFB 1451.
Senate 13 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
concessions or to reach agreement (s. 228 (2)) but it might, in a practical way, assist in facilitating
further bargaining between the parties having regard to the conduct which has led us to conclude
that the good faith bargaining requirements have not been observed. 50
Surface bargaining therefore can result in wasted time and resources, where one party has genuinely sought to
develop an enterprise agreement, while the other never intended to make the agreement.
Fixing the bargaining system
There are many factors contributing to the inefficiency and decline of the current bargaining framework. This
Regulatory Impact Statement does not address all those factors. The next section goes into detail about
specific problems with the current bargaining framework under the Fair Work Act that have contributed to the
decline in enterprise bargaining, including unnecessary complexity, disputes and protracted bargaining, lack of
access for certain groups and unintended loopholes which have led to a power imbalance in bargaining and
competitive advantages for some employers.
Unintended loopholes
Unilateral termination
Under section 225 of the Fair Work Act, if an enterprise agreement has passed its nominal expiry date, an
employer, an employee or a union can unilaterally apply to the Fair Work Commission to terminate the
enterprise agreement. Section 226 of the Fair Work Act provides that the Fair Work Commission must
terminate an enterprise if:
(a) the Fair Work Commission is satisfied that it is not contrary to the public interest to do so; and
(b) the Fair Work Commission considers that it is appropriate to terminate the agreement taking into
account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any),
covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely
effect that the termination will have on each of them.
This process effectively allows for a party to apply, without the consent of the other party, to terminate a
nominally expired but operational agreement. While the Fair Work Commission must take into account the
views of employees in determining whether it is appropriate to terminate the agreement, the views of
employees is one factor amongst many. The Fair Work Act does not assign any particular weight to the views
of employees and does provide that the views of employees are determinative. Each case must be considered
on its merits, with the individual Fair Work Commission Member deciding the application taking into account
each factor and determining the appropriate weight to be assigned to each factor and balancing the factors
overall.
Where an application is made by an employer to terminate an existing agreement without the support of the
employees, there may be significant consequences to the employees:
• If the Fair Work Commission does terminate the existing agreement, employees would then be
subject to the relevant Modern Award, usually resulting in significantly lower rates of pay and
conditions;
• Where an application is made or is even threatened to be made during bargaining negotiations it can
severely undermine the bargaining process by tilting the balance of bargaining power unfairly in
favour of the employer.
50
Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Pty
Ltd [2015] FWCFB 1451, [42].
Fair Work Legislation 14 Senate
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Regulation Impact Statement
Some examples include Griffin Coal where it was reported that employees would have their pay cut by over 40
per cent, and a similar reduction percentage in wages was anticipated in the case of Parmalat (although the
application was later withdrawn).51 In the context of enterprise bargaining, the prospect of this magnitude of
pay cut generates a significant incentive to accept a substandard enterprise agreement offer, potentially with
lesser pay and conditions than the existing agreement.
Historically, the Fair Work Commission has been reluctant to terminate a nominally expired agreement while
bargaining negotiations are ongoing. This was the position established in Tahmoor Coal Pty Ltd, where Vice
President Lawler of the Fair Work Commission found that terminating the agreement would "alter the status
quo in a fundamental way", allow the employer to "effectively achieve all that it sought out of the bargaining",
and reduce the prospects of another enterprise agreement being made. 52
However, since the 2015 Full Bench decision in Aurizon, the approach taken to unilateral termination and
ongoing bargaining has substantially changed. In Aurizon, the Fair Work Commission terminated twelve
nominally expired enterprise agreements and noted that, "there is nothing inherently inconsistent with the
termination of an enterprise agreement that has passed its nominal expiry date and the continuation of
collective bargaining in good faith for an agreement".53
In Aurizon, unions claimed that there was a reduction in entitlements, including those related to no forced
redundancy and relocation, free rail passes, dispute procedures, drug and alcohol testing, internal vacancies
and rostered days off arrangements. To offset the impact of termination on entitlements, Aurizon provided
undertakings to preserve wages and allowances entitlements for 6 months from the date of termination or
until commencement of a new agreement.
Applying to unilaterally terminate an agreement can undermine ongoing negotiations for a new enterprise
agreement by threatening a severe consequence for not agreeing to the terms and conditions of the proposed
new enterprise agreement. Enterprise agreements should be negotiated between employers, employees and
their union/s in good faith. Using provisions designed for one purpose (to terminate expired enterprise
agreements) in order to influence a separate process (negotiating an enterprise agreement) is a loophole that
creates a power imbalance in enterprise bargaining. Employees can face pressure to accept less favourable pay
and conditions in the new agreement, potentially inferior to those in the agreement that would be terminated,
or risk having their wages governed by their Modern Award. This ability of employers to put this pressure on
employees is unfair and employees have no corresponding tools at their disposal.
Examples
The Department notes the example of a large business threatening to terminate an existing nominally expired
agreement due to deadlocked bargaining negotiations. An approximate 97.5 per cent of eligible employees
voted against the employer's proposed agreement terms. Following this, the employer sought to apply to the
Fair Work Commission to terminate the existing agreement which would have resulted in employees reverting
to the Modern Award and a 37 per cent pay cut for some of those employees according to union estimates.
In another example, a company sought to terminate an existing enterprise agreement covering approximately
600 employees after 2 years of negotiations. A union claimed this would result in pay cuts of up to 50 per cent
due to employees returning to the Modern Award. This occurred after various attempts between bargaining
parties to resolve a bargaining impasse. The employer claimed they applied to terminate the enterprise
agreement because it contained restrictive work practices that interfered with managerial and operational
decision-making.
Employers have other options available to them if they want to amend or reduce the terms and conditions of
employment in their workplace, such as jointly agreeing with their employees to terminate their agreement or
51
The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312; Senate Standing Committee on Education and
Employment, Report on Corporate Avoidance of the Fair Work Act 2009, Chapter 4, September 2017.
52
Tahmoor Coal Pty Ltd [2010] FWA 6468.
53
Re Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB
540, para 158.
Senate 15 Fair Work Legislation
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negotiating a new agreement, which are more consistent with the objectives of enterprise bargaining to foster
cooperation within the workplace.
Legacy or 'zombie' agreements
A legacy agreement refers to instruments made prior to the commencement of the Fair Work Act and during
the 'bridging period' (1 July-31 December 2009). These legacy agreements are commonly referred to as
'zombie' agreements and include both Australian Workplace Agreements (individual agreements) and historic
collective instruments.
Zombie agreements were not required to be compared against Modern Awards when they were made (unlike
enterprise agreements) and continue to operate unless they are terminated or replaced. Employees covered
by zombie agreements are very likely to have less beneficial terms and conditions than they would otherwise
receive under the relevant Modern Award.
It is not possible to quantify the precise difference in entitlements between zombie agreements and Modern
Awards. Each zombie agreement will provide for different entitlements compared with the underpinning
Modern Award/s. For example, one zombie agreement terminated in January 2022 deprived employees of
approximately $5 per hour on Saturdays, $10 per hour on Sundays and $24+ per hour on public holidays.54
Zombie agreements can present a significant financial incentive for employers to retain the agreement and not
engage in bargaining for a replacement instrument. This competitive advantage not only impacts employees
that remain on inferior wages and conditions, but also competitors of these businesses that must operate with
a higher wages and conditions under the modern safety net.
While most employees covered by zombie agreements will have less beneficial terms and conditions than they
would otherwise receive under the relevant Modern Award, there are limited instances where workers are
better off under the terms of a zombie agreement. Access to bargaining
As outlined above, the proportion of employees covered by enterprise agreements has been decreasing since
its peak in 2010. Many of those employers that did bargain in the past are now not renegotiating their
agreements after the nominal expiry date. This suggests that significant numbers of employees and employers
are finding it too difficult or are not sufficiently incentivised to reopen bargaining negotiations. Because of
their access to resources and workplace relations and legal expertise, enterprise bargaining has generally been
the domain of large employers in the public and private sectors. Small and medium business and certain
sectors have not had the same ease of access and therefore have missed out on the benefits of bargaining.
While smaller employers can pool their resources to bargain collectively as a unit, access to multi-enterprise
bargaining is currently limited.
Multi-enterprise bargaining
Single-interest employer authorisation stream
Under s.247 of the Fair Work Act, two or more employers that are not single interest employers but that have
a close connection to one another, may be permitted to bargain for a single-enterprise agreement. To use this
process the employers must apply to the Minister for a declaration that they may bargain together and then
obtain a single interest employer authorisation from the Fair Work Commission. In deciding whether to make a
declaration the Minister considers factors set out in section 247(4), which include whether the employers have
bargained together, have common interests, operate collaboratively rather than competitively and are
substantially government funded.
Applicants for a single-interest employer authorisation are usually franchisees or organisations in feminised
and substantially government funded sectors, such as independent schools and health service providers, and
franchisees. The process to access this stream is onerous and the unnecessary limits of the current provisions
are evidenced by the fact that only five applications for Ministerial declarations and 10 applications for single
interest employer authorisations are made per year on average. It is unclear on what basis the single interest
stream provides such strict entry rules, particularly given the largely unrestricted provisions under the multi-
enterprise agreement stream.
54
Empire Holdings (Qld) Pty Ltd t/a Empire Hotel and Cloudland [2022] FWCA 62.
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Regulation Impact Statement
Multi-enterprise agreement stream
Employer engagement with the multi-enterprise agreement stream has been limited - only 18 multi-
enterprise agreements were approved in 2020-21.55 Departmental data shows there are 15.2 employers
covered per agreement on average, with 80.2 employees per employer covered, amounting to over 1,200
employees.56 Industries covered under this framework include education, health and financial and insurance
services. These data outline the lost opportunity for other industries and businesses to engage within this
stream and indicate the potential for increases in both businesses and employees able to take advantage of
improved wages and conditions with reforms to encourage their entrance to the bargaining space.
Low-Paid Bargaining Stream
The low-paid bargaining stream has been very rarely used since the commencement of the Fair Work Act.
Bargaining representatives must gain approval to use the stream by the Fair Work Commission, who must find
that the relevant industry has not historically bargained, and that bargaining will improve productivity or
service delivery. A special power within this stream is the Fair Work Commission's right to create a binding
determination if the bargaining parties are unable to meet agreement. Reforms to remove the high barrier of
entering this scheme will help improve access for industries which currently provide low pay for its workers.
It was hoped that the low-paid bargaining stream would address pay outcomes for low-paid workers.57 These
provisions have not been successful, with only four applications under the stream and only one application
granted. The current criteria for a low-paid bargaining authorisation are too onerous and are a major barrier to
entry.
Unnecessary complexity and delays
Some employers have indicated that they are turning away from bargaining for enterprise agreements as the
process is too complex and technical and it is not worth their while. Much of the perceived complexity in the
bargaining system arises from prescriptive legislative requirements under the Fair Work Act, many of which
exist to ensure employee rights are protected during the enterprise bargaining process. 58 In addition, evolving
case law has at times compounded the complexity of the bargaining process.
There is consensus among unions, employer organisations, academics and the Government that pre-approval
requirements for enterprise agreements are onerous, complex and unnecessarily prescriptive. Approval delays
or withdrawn applications caused by a procedural error made during the bargaining process has significant
consequences for employers and their employees by delaying necessary change and withholding pay
increases. A 2018 amendment to the Fair Work Act has ensured that many minor errors in relation to pre-
approval steps no longer jeopardise agreement approval. 59 However, as outlined, the process remains highly
prescriptive. While the approach set out in the legislation represents one way of ensuring genuine agreement,
it does not allow for alternative approaches to securing genuine employee consent. Notably, it does not allow
for situations where the bargaining parties have longstanding consultative arrangements and equally effective,
but alternative, ways of ensuring the workforce is informed and engaged in the agreement-making process.
As well as the concern over the genuine agreement requirements, employers have consistently raised issues
about the application of the Better Off Overall Test, which is the key mechanism in bargaining to safeguard
employee wages and conditions. An enterprise agreement currently passes the Better Off Overall Test if the
55
Fair Work Commission, General Manager's Report 2018-21, November 2021, p.35.
56
Department of Employment and Workplace Relations, Workplace Agreements Database
57
Fair Work Bill 2008, Explanatory Memorandum, para 992.
58
In Construction, Forestry, Mining and Energy Union v Karijini Rail Pty Ltd [2020] FWCFB 958, an employer
made an agreement with two employees that were covered by the relevant Modern Award and went on to
employ approximately 50 employees. The employer failed to explain the base rates of pay in the agreement
compared to the rates and allowances payable under the relevant Modern Award, including how it was
detrimental in a number of ways. The Full Bench of the Fair Work Commission considered that the employer
had not taken all reasonable steps to explain the terms of the agreement to the employees.
59
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018, Schedule 2.
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Fair Work Commission is satisfied that each award covered employee, and prospective award covered
employee, would be better off overall if the agreement applied than if the relevant Modern Award applied.
In the Coles decision of 2016, a Full Bench of the Fair Work Commission found that, although the Better Off
Overall Test is a global test, if any individual employees or prospective employees are found to not be better
off, the agreement cannot be approved without undertakings. 60 In the months after this decision, the number
of agreements requiring undertakings increased. This suggested the Fair Work Commission was taking a highly
forensic approach to analysing agreements against the Better Off Overall Test, increasing the complexity and
uncertainty of the process. The Coles decision - and the subsequent increase in agreements being approved
with undertakings - caused a substantial increase in the time taken to approve enterprise agreements, from a
median of 18 days (from lodgement to approval) in 2015-16 to a high of 76 days in 2017-18. While the Fair
Work Commission's 2021-22 report indicates it is now meeting its timeliness benchmarks (of 8 weeks to
finalise approvals in 90 per cent of cases), it is accepted that the detailed approach to applying the Better Off
Overall Test remains in place. Employer groups are strongly of the view that the broader decline in enterprise
agreement coverage across the labour market is, in part, referrable to these changes in the application of the
test and the uncertainty it has resulted in.
Taking industrial action
The ability to take industrial action is an important negotiating tool for parties engaging in enterprise
bargaining. During bargaining, there is often an unavoidable asymmetry of information and bargaining power
between the negotiating parties, which is in part counterbalanced by the capacity for employees to take
industrial action.
The process for taking protected industrial action is highly regimented. Currently, employees and employers
can only take protected industrial action when they are negotiating for a proposed enterprise agreement and
that agreement is not a greenfields agreement or a multi-enterprise agreement. Protected industrial action
can only occur when all the following conditions are met:
• the nominal expiry date of an existing agreement has passed,
• bargaining for a new enterprise agreement has commenced,
• a protected action ballot order has been approved by the Fair Work Commission,
• a majority of eligible employees have supported the action through a secret ballot, and
• the required notice has been given.
Unprotected industrial action is not permitted and may be stopped or prevented by the Fair Work
Commission.
An employer must not pay employees while they are taking protected industrial action and must not threaten
to dismiss or discriminate against an employee for participating in industrial action. Employers are also
permitted to take industrial action by locking employees out of the workplace. However, a lockout can only be
instituted in response to protected industrial action being taken by employees. Solidarity, sympathy or
secondary action (action against an employer who is not party to a dispute), is not lawful under the Fair Work
Act.
The definition of industrial action in the Fair Work Act excludes action by an employee if the action is based on
a reasonable concern of the employee about an imminent risk to his or her health or safety and the employee
did not unreasonably fail to comply with a direction of his or her employer to perform other available work,
whether at the same or another workplace, that was safe and appropriate for the employee to perform.
Agreement content
The current agreement content provisions have been outlined earlier in this Regulatory Impact Statement.
60
Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd [2016] FWCFB 2887.
Fair Work Legislation 18 Senate
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Regulation Impact Statement
It is noted that the Fair Work Commission has determined that agreement terms relating to positive gender
quotas is not a matter pertaining to the employment relationship. 61 As mentioned above, Research from the
Bankwest Curtin Economics Centre and the WGEA shows that the combination of gender concentration and
salary differences between men and women within industries contribute to the gender pay gap. Positive
gender measures may encourage more women to work in high-paying industries, with the net effect helping to
decrease the gender pay gap.62 This research found that Australia's gender pay gap would fall by more than a
third if a 40:40:20 gender concentration were to be achieved across all industries and occupations. 63
The effect of current judicial interpretation of permitted matters in enterprise agreements prevents positive
terms being agreed to address pay disparity as effectively as might otherwise be possible.
Pre-approval steps
The Fair Work Act has a range of pre-approval requirements that must be considered by the Fair Work
Commission in the approval process. They include the requirement that the agreement be genuinely agreed,
that the employees to be covered are fairly chosen and that it doesn't contain unlawful terms. The Fair Work
Commission may request additional information beyond what is provided by employers in their application
and seek to examine witnesses to inform their decision about whether to approve the agreement. If the
application for approval is contested in the Fair Work Commission, this could also contribute to delays in the
commencement of the agreement. Additionally, if the agreement is appealed this can also contribute to costs
and uncertainty.
Genuine Agreement
An enterprise agreement has been genuinely agreed to by the employees to be covered by the agreement if
the Fair Work Commission is satisfied that:
• the employer, or each of the employers, covered by the agreement:
o took all reasonable steps to ensure that during the access period for the agreement, the
employees were given a copy of the written text of the agreement, and any other material
incorporated by reference in the agreement or that the employees had access through the
access period to those materials
o took all reasonable steps to notify the employees, by the start of the access period for the
agreement, of the time and place at which the vote will occur and the voting method
o took all reasonable steps to ensure that the terms of the agreement, and the effect of those
terms, were explained to the employees and the explanation was provided in an appropriate
manner, taking into account the particular circumstances and needs of the relevant
employees, and
o did not request the employees to approve the enterprise agreement until 21 clear days after
the last notice of employee representational rights was given;
• The agreement was made:
o if the proposed agreement is a single-enterprise agreement - when a majority of those
employees who cast a valid vote approved the agreement, or
o if the proposed agreement is a multi-enterprise agreement - when a majority of the
employees of at least one employer who cast a valid vote approved the agreement; and
61
United Firefighters' Union of Australia (259V) v Metropolitan Fire & Emergency Services Board [2016] FWCFB
2894.
62
Duncan AS, Mavisakalyan A and Salazar S (2022), Gender Equity Insights 2022: The State of Inequality in
Australia, BCEC|WGEA Gender Equity Series, Issue #7, October 2022, page 31.
63
Duncan AS, Mavisakalyan A and Salazar S (2022), Gender Equity Insights 2022: The State of Inequality in
Australia, BCEC|WGEA Gender Equity Series, Issue #7, October 2022, page 63.
Senate 19 Fair Work Legislation
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Regulation Impact Statement
o there are no other reasonable grounds for believing that the agreement has not been
genuinely agreed to by the employees.
The Better Off Overall Test
The Fair Work Commission must be satisfied that the agreement passes the Better Off Overall Test. An
agreement passes the test if the Fair Work Commission is satisfied, as at the test time, that each award
covered employee, and prospective award covered employee, would be better off overall if the agreement
applied than if the relevant Modern Award applied.
An award covered employee is an employee who is covered by the agreement and at the test time, is covered
by a Modern Award. Prospective award covered employees are considered in the application of the better off
overall test because sometimes an agreement may cover classifications of employees in which no employees
are actually engaged at the test time.
Facilitating bargaining
Currently, the options to progress bargaining that has become protracted or to deal with surface bargaining
under the Fair Work Act are limited. Where parties cannot agree on a new enterprise agreement and
bargaining becomes intractable, the ability to draw negotiations to a close is limited. The Fair Work
Commission can arbitrate a dispute under section 240 with the agreement of the bargaining parties; or in
circumstances where industrial action has been terminated; where bargaining is intractable under the low-
paid bargaining stream; and following the making of a 'serious breach declaration' for repeated breaches of
the good faith bargaining requirements. Instances of this are rare, with approximately 6 known industrial-
action related workplace determinations issued since the commencement of the Fair Work Act. There is no
data available concerning the number of section 240 arbitration decisions issued by the Fair Work Commission
and there have been no low-paid or bargaining-related workplace determinations issued.
Workplaces with an entrenched and historic disputative relationship are more likely to experience protracted
bargaining. This is usually because bargaining disputes are not resolved in a manner that is both quick and
agreeable to both bargaining parties. Options to progress bargaining at these stages is practically limited to
industrial action, and once a protected industrial action order is made, a wide range of actions can be pursued.
Industrial action can then also become protracted, further extending the bargaining period unless and until the
dispute is resolved. Protracted industrial action can be costly and highly disruptive to both the employer and
the employees. The employer is also limited in resolving the dispute, as while it can lock workers out of the
workplace, this does not resolve the core bargaining issue and continues to extend the bargaining period.
Alternative dispute resolution methods such as arbitration64 can provide a pathway out of protracted
bargaining and can provide bargaining parties with an alternative to industrial action. The Fair Work Act
contains an existing framework to arbitrate disputes, however, arbitration can only be accessed by mutual
consent in normal circumstances. Mutual consent may be difficult to achieve in industries especially with
historic and entrenched disputation. However, arbitration can resolve disputes sooner and reduce the
bargaining period (especially where bargaining would otherwise have become protracted).
The lack of access to arbitration means that employers or unions with significant bargaining power can refuse
to make concessions during bargaining (surface bargaining). One-sidedness in collective bargaining can
dissuade the weaker party from participating meaningfully, which is likely contributing to the low level of
bargaining that is currently occurring under the Fair Work Act. This can be the intended effect of bargaining
tactics, such as threats to terminate existing enterprise agreements, which can cause employees to accept
offers they otherwise would not agree to, and bring bargaining to an end.
64
Arbitration utilises an independent third-party umpire (i.e. the Fair Work Commission), to settle a dispute
Fair Work Legislation 20 Senate
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Regulation Impact Statement
2. Why is Government action
needed?
The Government held the Jobs and Skills Summit in September 2022. The Summit demonstrated that
workplace relations stakeholders including employers, employees and those from the broader community
including academics have a sincere desire to reform the bargaining system. The Government received
submissions from various employer and employee groups prior to the Summit which highlighted a need for an
overhaul of the industrial relations system to increase dialogue between businesses and workers, to simplify
the existing system, and increase access to enterprise bargaining.
Consensus reached at the Jobs and Skills Summit confirmed the need to modernise Australia's workplace
relations laws to make bargaining accessible for all workers and businesses. Further, following the conclusion
of the Jobs and Skills Summit the Government undertook consultation with employer organisations, unions,
academics and some of Australia's major employers to continue the development of the various policy reform
options.
The proposed reforms require action from the Government, since the bargaining framework exists in
Commonwealth legislation, which requires amendment for the framework to function differently. The Fair
Work system generally covers the majority of, but not all, employers and employees in Australia. 65 The system
establishes a range of rights and obligations of employers and employees in the workplace. If an employer or
employee is not part of the national system, the industrial relations system in their state or territory covers
them.
The enterprise bargaining reform measures seek to address issues within the Fair Work Act which have led to a
bargaining system that is onerous, prescriptive and overly complex. The system is no longer working as it was
intended to operate when initially introduced.
A key metric which will measure the success of its reforms to enterprise bargaining is increasing the number of
new collective agreements lodged in the Fair Work Commission, and the proportion of the labour market
covered by a collective agreement. The Department considers that reforms which address access to
bargaining, and the ease of bargaining, will be directly responsible for this change.
More broadly these reforms seek to improve real wage growth and rebalance bargaining. These will be
indicated by wages which are higher than the rate of inflation, and which are sustained by productivity.
Increasing the rate of bargaining will help to achieve this, but so will more direct government intervention in
the bargaining framework, by closing loopholes which contribute to employees having low wages, and by
ensuring the Fair Work Commission is able to assist parties in bargaining to reach outcomes.
Legislation is required
The continued presence of zombie agreements, and the ability for employers to influence bargaining
outcomes by threatening to apply to terminate an enterprise agreement, are legislative issues which require a
legislative solution. The Department is unaware of non-legislative measures or market initiatives which would
address these problems. The Department considers the longer action is delayed on closing these loopholes,
the more the bargaining framework as a whole will be undermined.
The declining rate of enterprise agreements means that additional options to come to agreement like multi-
enterprise bargaining should be considered. The very low use of the multi-enterprise bargaining provisions due
to prescriptive and complex requirements means that legislation is required to improve access to enterprise
bargaining, particularly for employees in low paid industries.
65
For instance, state and local government employees are excluded in some states and territories. Western
Australia maintains its own system for non-constitutional corporations.
Senate 21 Fair Work Legislation
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Regulation Impact Statement
The procedural requirements for making an enterprise agreement and its approval are prescribed in the Fair
Work Act, and stakeholder views are now aligned that these requirements should be amended. Legislation is
needed to reduce complexity and simplify these processes to boost bargaining and provide more certainty to
bargaining parties over requirements like 'genuine agreement' and the Better off Overall Test.
Parties currently have limited access to dispute resolution options while bargaining which can lead to delays
and costs. Legislation is needed to provide additional powers to the Fair Work Commission to help assist
parties to bargain.
Market failure
Relying on market correction to resolve long-running labour market problems is the status quo option. The
Department considers that helping to lift the rate of bargaining across the economy is one way to ensure
Australians benefit from sustainable wages growth - underpinned by rising productivity. Low wages growth is
partly a symptom of bargaining power imbalance and is partly due to the failure of the market to work within a
legislative framework which presently does not adequately promote collective bargaining.
A successful collective bargaining system will ensure that all parties can bargain, and are able to bargain on an
equal footing. Previous experience suggests that the current low rate of unemployment should have lifted
wages growth in Australia - employees should be attaining a reasonable share of productivity growth,
expressed by an improvement in wages. Neither of these have occurred, indicating a failure for the market to
correct labour prices in response to high demand. The Department considers improving accessibility to
bargaining and taking steps to rebalance bargaining power will assist the labour market to reflect the cost of
labour. Rather than taking active steps to address the current issues with the labour market, allowing market
forces to dictate sub-optimal outcomes from the bargaining system is likely to perpetuate these problems.
Legislative intervention is therefore the preferred option over market forces.
Non-legislative options
The Government must directly intervene in the workplace relations framework to resolve the myriad of issues
present in the bargaining system. There are no programs or funding measures which will address serious
loopholes, the marked decline in bargaining, or complex processes.
An alternative option to enacting new measures is to rely on the Fair Work Commission to effect change. The
Fair Work Commission is pivotal in the enterprise bargaining process however it cannot amend legislation or
reduce regulatory burden. The Courts and Fair Work Commission interpret and apply existing legislation
consistent with the principles of the common law. An example of the Fair Work Commission acting on its own
initiative was when sought to improve its enterprise agreement approval timeliness performance. It achieved
this by tightening its benchmarks and digitising some aspects of its agreement lodgement process. However,
during this period, enterprise agreement lodgement and coverage rates continued to decline.
Fair Work Legislation 22 Senate
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Regulation Impact Statement
3. What policy options are you
considering?
3.1 Unilateral termination of agreements
Option 1 - Status Quo
Under this option, there will be no amendment to the legislation. Employers can continue to rely on the
precedent set by the Fair Work Commission regarding unilateral termination and continue to apply, or
threaten to apply, to the Fair Work Commission to terminate a nominally expired agreement. Enterprise
agreements are not intended to operate in perpetuity, and there are legitimate reasons for the unilateral
termination provisions to exist, like terminating an agreement which no longer covers any employees.
This is not the preferred option, since continuing to allow what is seen to be an evasive practice will further
undermine confidence in the enterprise bargaining system and inhibit the use of more cooperative methods
for setting terms and conditions of employment.
Option 2 - Ensure the process for agreement termination is fit
for purpose and fair (preferred)
This option implements an immediate outcome of the Jobs and Skills Summit to ensure that the process for
agreement termination is fit for purpose and fair. This option prefers a flexible approach to address a complex
problem. Terminating agreements can be appropriate in some circumstances. This flexibility must be balanced
against negative behaviours that the power to terminate has given rise to.
Applying to terminate an agreement that is the result of good faith bargaining is a significant procedural
power. Termination of, or threatening to terminate, an agreement can have significant effects for employees
(discussed above) and, when used as an unfair bargaining tactic, can have a negative effect on good faith
bargaining and bargaining outcomes.
This proposal would be implemented by amending s.226 of the Fair work Act to provide that the Fair Work
Commission cannot terminate an agreement that has passed its nominal expiry date other than where the
continued operation of the agreement would:
• be unfair to employees; or
• pose a significant threat to the viability of the employer's business, and that termination would likely
reduce the potential of redundancy-related terminations of employment of employees covered by
the agreement, and terms providing termination entitlements are preserved by a guarantee of
termination entitlements from the employer; or
• where the agreement does not cover any employees and is not likely to cover any employees.
In addition, the Fair Work Commission must not terminate an agreement if it considers that bargaining for a
proposed agreement with the same or substantially the same coverage has commenced, is occurring, and
termination could negatively influence the bargaining position of employees that will be covered by the
proposed agreement.
An employer, employee, or union covered by an agreement would still be able to unilaterally apply to the Fair
Work Commission to terminate an agreement in the exceptional circumstances outlined above. The proposal
will prohibit the process from being used as an unfair bargaining tactic while ensuring that legitimate
applications can continue to be made. Employers and employees would continue to be able to terminate
enterprise agreements by consent at any time.
Senate 23 Fair Work Legislation
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Regulation Impact Statement
In considering whether to terminate an enterprise agreement on the basis of business viability, the Fair Work
Commission will be required to be satisfied that each employer covered by the agreement has given the Fair
Work Commission a 'guarantee of termination entitlements' in relation to terms providing entitlements
relating to the termination of employees' entitlements. A guarantee of termination entitlements protects
additional termination entitlements of employees to prevent employees being short-changed in the event of
business insolvency and redundancy. A guarantee of termination entitlements will be in force for a maximum
of 4 years.
Under this proposal, the Fair Work Act will also be amended to provide that all applications to unilaterally
terminate an enterprise agreement after its nominal expiry date, where the enterprise agreement still covers
employees, must be dealt with by a Full Bench of the Fair Work Commission. Agreements that do not cover
any employees at the time of the application can continue to be dealt with by a single Member, as can
applications made by consent under s 222.
This option is preferred because it acknowledges the significance of unilaterally terminating, or threatening to
terminate, an agreement. This option balances the legitimate need to terminate an agreement in appropriate
circumstances against the harm that can be caused by misuse of the power. This option retains the ability to
terminate agreements in exceptional and appropriate circumstances and directly addresses the emergence of
the unfair bargaining tactic of applying to, or threatening to, terminate agreements.
Option 3 - Ensure the process for agreement termination is fit
for purpose and fair through a 'front end' test
This option proposes a strict rule prohibiting applications to terminate agreements if certain conditions are
met.
This option would apply a barrier to applications to prevent the Fair Work Commission from considering
applications to terminate an enterprise agreement after the nominal expiry date under s. 225. A barrier to
applications would operate by preventing termination applications being made during bargaining which results
in significant pressure on employees to accept the new agreement.
An example of a barrier to applications which could be applied to s.225 is:
• Limiting applications until a certain period after the nominal expiry date of an agreement, such as 3 or
6 months. This approach is consistent with the approach taken in Schedule 3, Part 8 of the Fair Work
Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021, which proposed to
prevent applications to terminate an enterprise agreement being made within 3 months of that
agreement's nominal expiry date; and
• Preventing applications while bargaining is occurring to ensure that the dynamic of bargaining cannot
be disrupted either by making or threatening to make an application to terminate an enterprise
agreement.
This option is not preferred because it would remove any flexibility to terminate agreements if bargaining is
occurring, even if termination is otherwise considered appropriate. This option does not balance the legitimate
need to terminate an agreement in appropriate circumstances against the harm that can be caused by misuse
of the power.
3.2 Zombie Agreements
Option 1 - Status Quo
Under this option no action would be taken to sunset 'zombie' agreements. 'Zombie' agreements will continue
to operate until terminated on application to the Fair Work Commission or, in relation to collective agreement-
based transitional instruments, they are replaced by an enterprise agreement or workplace determination.
Individual agreement-based transitional agreements will also continue in operation until terminated by the
Fair Work Commission on application by an employee or employer covered by the agreement. Employers with
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Regulation Impact Statement
zombie agreements will retain their advantage over competitors to the detriment of their employees, who will
remain on wages and conditions inferior to the modern safety net.
This option is not preferred because zombie agreements preserve conditions of employment that are not
consistent with the modern safety net and continues an unfair competitive advantage for some businesses.
Employees covered by zombie agreements are very likely to have less beneficial terms and conditions than
they would otherwise receive under the relevant Modern Award. In private consultations, stakeholders were
generally in agreements that action should be taken to terminate zombie agreements.
Option 2 - Sunset 'zombie' agreements but provide
employers and employees with the ability to extend
(preferred)
This option legislates to automatically sunset agreement-related instruments made prior to the
commencement of the Fair Work Act and during the 'bridging period' (1 July-31 December 2009). These legacy
agreements are commonly referred to as 'zombie' agreements and include both Australian Workplace
Agreements (individual agreements) and historic collective instruments. This was agreed as an immediate
outcome of the Jobs and Skills Summit.
This option would be implemented by:
• Automatically terminating all zombie agreements 12 months after the commencement of the
provisions; and
• Permitting applications to the Fair Work Commission by an employer or employee covered by a
zombie agreement to preserve the agreement for up to a 4-year period after sunset if it is otherwise
appropriate in the circumstances to do so, and:
o Employees covered by the collective zombie agreement are better off overall under the
agreement when compared with the Modern Award (considered as a group, rather than for
individual employees); or
o The employee covered by the individual zombie agreement is better off overall when
compared with the Modern Award; or
o Bargaining for a replacement agreement is occurring.
The Fair Work Commission would also be able to preserve a zombie agreement if it is reasonable in the
circumstances to do so.
This proposal provides that an employee or employer covered by a zombie agreement (either individual, such
as an Australian Workplace Agreement, or collective) could apply to the Fair Work Commission to preserve the
agreement for a further period to prevent the agreement from sunsetting. Within 6 months of the
commencement of the bill, employees covered by a zombie agreement must be notified by their employer
that the zombie agreement that covers them will sunset.
When implemented, the options for parties covered by a zombie agreement would be to bargain for a
replacement agreement that would be subject to the Better Off Overall Test or revert to the terms and
conditions of the relevant Modern Award. The net outcome for some employers may be that they opt to
default to the relevant Modern Award. However, this measure is part of a broader package of reforms to
encourage and facilitate agreement- making, so employers may be more willing to engage with the agreement
framework.
This option is preferred because it automatically terminates all zombie agreements, it provides a grace period
to permit employers currently covered by zombie agreements to take necessary action (discussed above) and
provides the ability to extend the grace period (via application to the Fair Work Commission) in certain
circumstances and where appropriate. This option evens the playing field for workers covered by these
outdated agreements and for businesses that have had a competitive advantage over their competitors. The
option recognises that termination of zombie agreements is the appropriate step to take but retains flexibility
to preserve the status quo for a further period with oversight by the independent Tribunal.
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The Department has considered whether a shorter or longer timeframe for preserving zombie agreements
should be preferred. Based on confidential stakeholder consultations the proposed periods were reviewed,
and the Department considers the periods proposed are reasonable and preferred.
Option 3 - Sunset 'zombie' agreements only
This option would automatically terminate all 'zombie' agreements 12 months from the commencement of
provisions. Employers and employees covered by 'zombie' agreements that have sunset would then have their
safety net of entitlements derived from the relevant Modern Award or, in the case of some individual
agreement-based transitional instruments, enterprise agreement (if one is in operation and covers them). It
would be open to employers, employees and unions to bargain for a new enterprise agreement or revert to the
relevant Modern Award/s.
This approach is not preferred as it would not include the capacity to apply to the Fair Work Commission to
preserve the agreement for a further period to prevent the agreement from sunsetting. This may mean that the
small number of employees on zombie agreements that are more generous than the Modern Award do not have
time to negotiate new arrangements and may be left worse off as a result. It may also lead to employees agreeing
to a substandard agreement in order to avoid falling back onto the safety net.
3.3 Improving access to single and multi-
employer agreements
Option 1 - Status Quo
Under this option, there will be no amendment to legislation to improve access to single and multi-employer
agreements.
Initiating single enterprise bargaining
Under this option, the current Majority Support Determination would not change. The current process allows
employers to be required to come to the table and engage in good faith negotiations only if the relevant
employees agree via a Majority Support Determination that they wish to bargain in the stream.
Single interest bargaining stream
Single-interest employer authorisations under section 247 of the Fair Work Act currently allows access to the
single-enterprise agreement making framework for a limited range of groups of employers that are closely
related, e.g. government funded independent school systems and public hospitals. The provisions were
established to allow such employers to bargain together because their industrial relations frameworks are
closely aligned, despite not being structured in a way that necessarily allows immediate access to the single-
enterprise bargaining framework (I.e., they may not be related bodies corporate or engaged in a joint venture
or common enterprise). For employers other than franchisees, the process currently involves two steps: an
application for a Ministerial declaration, followed by a further application to the Fair Work Commission for a
single interest authorisation. Franchisees must only seek an authorisation from the Fair Work Commission.
In deciding whether to make a declaration the Minister considers factors set out in section 247 (4) of the Fair
Work Act, which include whether the employers have bargained together, have common interests, operate
collaboratively rather than competitively and are substantially government funded. The inclusion of
franchisees was intended to clarify any uncertainty arising from the jurisprudence about whether franchisees
are engaged in a common enterprise.
The narrow scope of the existing stream is reflected in there having recently been around only five
applications for Ministerial declarations and 10 applications for single interest employer authorisations per
year. Applicants are usually organisations which are feminised and substantially government funded, such as
independent schools and health service providers.
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Only employers can initiate an application for a single interest authorisation. Employers can be added or
removed from an authorisation, on application. They are removed if the Fair Work Commission is satisfied it is
appropriate due to a change in the employer's circumstances (section 251).
Low-paid bargaining stream
To access the low-paid bargaining stream, a bargaining representative or a union entitled to represent the
industrial interests of an employee in relation to work to be performed under a proposed multi-enterprise
agreement may apply for a low-paid authorisation which requires the employers to bargain. Employers may be
removed by variation if the Fair Work Commission is satisfied their circumstances have changed and it's no
longer appropriate for them to be specified in the authorisation. The current low-paid bargaining stream is
rarely used and has not resulted in a single multi-enterprise agreement. There have only been 4 applications
for a 'low-paid authorisation' under the current framework, with the only application granted in the aged care
sector.66 The 'low-paid authorisation' made in that matter did not result in the making of a multi-enterprise
agreement, but the application was observed to have inspired a number of enterprises to reach their own
single-enterprise agreements and so to successfully apply to be removed from the authorisation.
Multi-employer bargaining
Bargaining for a multi-employer agreement can only occur where two or more employers voluntarily agree to
bargain together. A Majority Support Determination is not available in respect of a multi-enterprise
agreement. This means that under the current framework, employers have to consent/opt in to bargaining for
a multi-enterprise agreement.
Protected action
Current protected action for multi-employer agreements notes that union members must undertake industrial
action within a period of 30 days (with an additional 30-day extension available on application to the Fair Work
Commission).
The maintenance of the status quo continues the need by employees to undertake all forms of industrial
action as listed on their protected action ballot within the initial 30 days (or the additional 30 days) to maintain
their right to take protected action. This requirement may cause the unnecessary inflaming of bargaining
disputes as it provides a built-in incentive to take industrial action. Extending the opportunity to apply
protected action will reduce the likelihood of it being taken prematurely or taken at all, which will help to
avoid unnecessary conflict and the possibility of a bargaining impasse.
Positive measures in agreements
Enterprise agreements can be made regarding permitted matters such as matters pertaining to the employer-
employee relationship matters pertaining to the employer-union relationship terms about deductions from
wages, and terms about how the agreement will operate. Currently positive measures terms are not permitted
matters in enterprise agreements.
Summary
This option is not preferred because it does not address the decline in collective bargaining and the positive
outcomes that accompany an effective collective bargaining system. Maintaining the status quo is likely to
mean that collective bargaining will continue to decline, real wage growth will continue to stagnate, real wage
growth will continue to fall behind productivity gains, and inequality will be harder to address.
66
United Voice v The Australian Workers' Union of Employees, Queensland [2011] FWAFB 2633.
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Option 2 - Improving access to single and multi-employer
agreements (preferred)
This option implements immediate outcomes of the Jobs and Skills Summit to ensure workers and businesses
have flexible options for reaching agreements, including removing unnecessary limitations on access to
existing single and multi-employer bargaining arrangements under the Fair Work Act by:
• increasing access and simplifying the process for bargaining for a single-interest agreement under the
existing framework;
• removing barriers to the existing low-paid bargaining stream; and
• reforming the existing multi-employer agreement stream into an opt-in 'cooperative workplaces'
bargaining stream.
This policy proposal also proposes to:
• ensure the process for taking industrial action is robust and fair; and
• amend content restrictions in enterprise agreements.
Details on the proposals that aim to provide quicker access to arbitration for intractable disputes, incentivise
the parties to bargain reasonably and in good faith and in less time, and reduce the prospects of industrial
action, are outlined in increase the Capacity of the Fair Work Commission to help workers and businesses
reach agreements.
Initiating single-enterprise bargaining
This option retains Majority Support Determinations for the single enterprise bargaining stream. To overcome
the difficulty in obtaining a determination this option supports those workplaces that have bargained in the
past by removing the requirement to obtain a Majority Support Determination where the following two
conditions are met.
• the employees are covered by an agreement that has passed its nominal expiry date within the last
five years; and
• the scope of the proposed agreement is substantially similar to the expired agreement.
Single-interest bargaining stream
This option makes the Single Interest Bargaining Stream fair, simple and more accessible for employers. The
proposed changes will increase the ability for multi-employer bargaining amongst businesses with common
interests by:
• Removing the requirement to obtain a Ministerial declaration.
• Removing unnecessary criteria and instead requiring the Fair Work Commission to be satisfied of the
following when considering a single interest bargaining authorisation:
o the employers have clearly identifiable common interests (for example geographic location
and/or a common regulatory regime); and
o the authorisation is not contrary to the public interest.
• Existing requirements to consider the history of bargaining between the parties, whether it is more
appropriate to make separate agreements, whether the employers operate competitively and
whether they are substantially government funded will be removed.
• Allowing employers to be required to come to the table and engage in good faith negotiations only if
the relevant employees agree via a Majority Support Determination that they wish to bargain in the
stream. (Utilising the existing definition of small business employer in section 23 of the Fair Work Act,
employers with less than 15 employees are exempt from this process. It is intended small businesses
will instead access the Cooperative Workplaces Bargaining Stream - see below.)
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• Allowing the Fair Work Commission to decide (on application by either party or on its own motion)
that bargaining representatives who have a history of repeated non-compliance with the Fair Work
Act are not permitted to enter the stream.
• Allowing employers to 'opt-out' of the stream if the Fair Work Commission is satisfied that it is no
longer appropriate for the employer to be covered because of a change in the employer's
circumstances; and
• Allowing employers to voluntarily apply to be covered by an existing single interest agreement where
the relevant employees of the employer have agreed by majority vote, where this is not contrary to
the public interest. Non-consenting employers could also be brought into an existing single-interest
agreement if a Majority Support Determination is successful, the employers already covered by the
single-interest agreement do not object and the Fair Work Commission is satisfied the coverage of the
new employer is appropriate.
• Requiring at least some of the employees involved in bargaining to be represented by a registered
organisation.
Low-paid bargaining stream (supported bargaining)
This option clarifies access to the low-paid bargaining stream and changes the name of the stream to the
'Supported Bargaining Stream'. The entry test for the stream would be replaced with the requirement that to
make a supported bargaining authorisation, the Fair Work Commission must be satisfied that it is appropriate
for the employers and employees to bargain together, having regard to:
• The prevailing pay and conditions within the relevant industry or sector (including whether low rates
of pay prevail in the industry or sector); and
• Whether the employers have clearly identifiable common interests (for example, geographical
location, nature of the enterprises to which the agreement will relate, and the terms and conditions
of employment in those enterprises, being substantially funded, directly or indirectly, by the
Commonwealth, a State or a Territory; and
• Whether the likely number of bargaining representatives would be consistent with a manageable
collective bargaining process; and
• Any other matters the Fair Work Commission considers appropriate.
The Fair Work Commission must also be satisfied that at least some of the employees involved in the
bargaining are represented by an employee organisation. An employer and employees covered by a single-
enterprise agreement that has not passed its nominal expiry date could not be compelled to bargain in the
Supported Bargaining Stream.
However, if on application of a relevant union, the Fair Work Commission is satisfied that the single-enterprise
agreement was made with the main intention to avoid being brought under a Supported Bargaining Stream
authorisation , the employer could be required to bargain in the stream.
Where an employer is covered by a current Supported Bargaining Stream authorisation, that employer would
not be able to agree to, initiate or be required to bargain for a single-enterprise agreement at the same time.
Employers could become covered by an existing Supported Bargaining Stream agreement where appropriate:
• if the employer consents and the relevant employees of the employer have agreed by majority vote,
or
• if employees obtain a Majority Support Determination.
Special rules already apply to bargaining under the current low-paid stream, which will be retained in the
Supported Bargaining Stream. These include:
• Bargaining orders are available and applications to deal with bargaining disputes can be made by one
bargaining representative only.
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• The Fair Work Commission can provide assistance to bargaining representatives on its own initiative,
including by directing relevant third parties (e.g., third party funding providers) to attend conferences
if their participation is necessary for the making of an agreement.
• The Fair Work Commission can make a binding workplace determination, setting terms and
conditions of employment, if the parties are unable to reach agreement through the new intractable
bargaining dispute process.
The Fair Work Commission will be empowered to arbitrate where, taking into account the views of the
bargaining parties, it is satisfied there is no reasonable prospect of agreement by other means, and the making
of an intractable bargaining declaration requiring the Fair Work Commission to arbitrate the dispute is
reasonable in all the circumstances.
Protected industrial action will be permitted under the Supported Bargaining Stream, subject to a successful
protected action ballot; and the provision of 120 hours' notice; and a mandatory requirement for the parties
to attend Fair Work Commission conciliation concurrent with the Protected Action Ballot process. The
requirement for conciliation will significantly minimise the likelihood of industrial action being taken and the
requirement for 120 hours' notice will provide employers adequate time to put in place contingencies.
Bargaining representatives with a history of repeated non-compliance with the Fair Work Act will not be
permitted to enter the stream.
Multi-employer bargaining stream (cooperative workplaces stream)
This option is to amend the existing multi-employer bargaining stream to create the Cooperative Workplaces
Bargaining Stream. The Cooperative Workplaces Bargaining Stream will be open to employers of all sizes and is
expected to be particularly attractive to smaller businesses. Since 2019 there have only been 49 agreements
made using the existing stream, in industries including education, health and financial and insurance services.
Under the proposed Cooperative Workplaces Stream:
• At least some of the employees involved in the bargaining must be represented by a registered
organisation.
•
• No party has a right to take industrial action of any kind.
• The Fair Work Commission cannot issue orders, mandate conciliation, or arbitrate an outcome, other
than conciliation or arbitration by consent of all parties.
• Bargaining parties may access additional support to make an agreement through the Fair Work
Commission's cooperative workplaces program, upon request.
• Bargaining parties with a history of repeated non-compliance with the Fair Work Act will not be
permitted to enter the stream.
• Employers can opt into a Cooperative Workplace Agreement, provided their employees genuinely
agree, and it is not contrary to the public interest.
Industrial action
This option retains Protected Action Ballots, although extends the validity of a protected action ballot to three
months from the date it was approved by employees to reduce unnecessary administrative burden and de-
escalate disputes where protected industrial action is on the table.
It adds an additional requirement before protected industrial action can be taken: parties must attend Fair
Work Commission conciliation during the industrial action notice period before the first industrial action is
taken under each Protected Action Ballot (i.e. 120 hours for Single Interest and Supported Bargaining Stream
multi-employer agreements; and 3 working days for single-enterprise agreements).
Lastly, the Fair Work Commission will be empowered to establish a publicly-accessible panel of pre-approved
ballot providers. Currently, the Fair Work Commission needs to certify on each occasion that a ballot agent
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other than the Australian Electoral Commission (AEC) satisfies the criteria for appointment. Pre-approval will
reduce inefficiencies by providing stakeholders with assurance of integrity and avoiding the need for Fair Work
Commission Members to undertake unnecessary work on each occasion. Further, electronic ballot providers
will enhance the accessibility and reduce the time and cost of undertaking protected action ballots, relative to
the current default option of postal or on-site ballots via the AEC.
Positive measures in agreements
This option amends the Fair Work Act to ensure that positive measures to address gender and other forms of
discrimination are permitted. This reform is consistent with the outcomes of the Jobs and Skills Summit, as
noted above. Positive measures in male-dominated industries may assist in substantive equality by providing
women the opportunity to seek roles in higher-paying industries, which would then assist in decreasing the
gender gap. This will be enacted in tandem with government support to increase female participation within
the workforce as a whole and male-dominated sectors
Summary
This option is preferred because it improves access to single and multi-employer bargaining and returns
fairness to Australia's collective bargaining framework. Those businesses and employees that wish to make
single-enterprise agreements will be able to do so. The proposed amendments give businesses and workers
more flexible and supported options to engage in collective bargaining, including for multi-employer
agreements, to achieve positive outcomes for both. The proposal encourages employers to bargain voluntarily
with their workers but also strengthens the options for workers to bring their employer to the bargaining table
and to achieve positive bargaining outcomes
Option 3 - Ease some restrictions and remove some limitations
to access single and multi-employer bargaining
Single enterprise bargaining stream
Under this option, there would be no changes to the Majority Support Determination process for the single
enterprise bargaining stream.
Single-interest bargaining stream
This option retains the existing framework for the Single Interest Bargaining Stream but removes the
requirement for a Ministerial declaration, instead requiring the Fair Work Commission to be satisfied that:
• the employers have clearly identifiable common interests (for example geographic location and/or a
common regulatory regime), and
• the authorisation is not contrary to the public interest.
Existing requirements to consider the history of bargaining between the parties, whether it is more
appropriate to make separate agreements, whether the employers operate competitively and whether they
are substantially government funded will be removed. This would reduce complexity of provisions, but retain
some red tape.
Low-paid bargaining
It is proposed that access to the low paid bargaining stream is broadened, and the name is changed to
Supported Bargaining Stream. Access to the stream would be on application by a relevant union and the Fair
Work Commission would need to be satisfied that there is:
• some commonality or nexus between employers such as geographic or common regulatory regime; or
• employee support for entering into the Supported Bargaining Stream
The Fair Work Commission would provide assistance to bargaining representatives to facilitate bargaining in
this stream. This option would allow access to industrial action in order to make it more attractive to
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employees and unions, with a ballot required at each individual employer. This addresses issues about the
current complexity of requirements and also the lack of bargaining power for low paid workers.
Multi-employer bargaining stream
Under this stream, the only change proposed is to require that employers can only use the stream if the
employer and employees are adequately represented. The parties would be adequately represented if the Fair
Work Commission is satisfied that their bargaining representatives are either registered organisations or have
sufficient training, experience and expertise to represent the parties having regard to the circumstances of the
particular bargain.
Industrial action and positive gender measures in agreements
Under this option there would be no changes to industrial action or to allow Positive Gender Measures in
Agreements.
Summary
This option is not preferred because it would not allow for greater access to enterprise bargaining for low paid
sectors. It retains the level of red tape for the single interest stream that has been a consistent barrier to entry
and doesn't rectify issues with starting bargaining.
3.4 Remove unnecessary complexity and
make the Better Off Overall Test simple,
flexible and fair
Option 1 - Status Quo
Under this option, there will be no amendment to the legislation. Employers and employees will continue to
bargain in accordance with the framework established by the Fair Work Act and the Fair Work Commission will
continue to assess applications for approval of enterprise agreements against current rules and the
interpretation of those rules.
Maintain the enterprise agreement approval process
• Under the Fair Work Act an enterprise agreement has been genuinely agreed to by the employees
covered by the agreement if the Fair Work Commission is satisfied that:
• the employer, or each of the employers, covered by the agreement:
o took all reasonable steps to ensure that during the access period for the agreement, the
employees were given a copy of the written text of the agreement, and any other material
incorporated by reference in the agreement or that the employees had access through the
access period to those materials
o took all reasonable steps to notify the employees, by the start of the access period for the
agreement, of the time and place at which the vote will occur and the voting method
o took all reasonable steps to ensure that the terms of the agreement, and the effect of those
terms, were explained to the employees and the explanation was provided in an appropriate
manner, taking into account the particular circumstances and needs of the relevant
employees, and
o did not request the employees to approve the enterprise agreement until 21 clear days after
the last notice of employee representational rights was given;
• The agreement was made:
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o if the proposed agreement is a single-enterprise agreement - when a majority of those
employees who cast a valid vote approved the agreement, or
o if the proposed agreement is a multi-enterprise agreement - when a majority of the
employees of at least one employer who cast a valid vote approved the agreement; and
• there are no other reasonable grounds for believing that the agreement has not been genuinely
agreed to by the employees.
Maintain the current Better Off Overall Test
An enterprise agreement currently passes the Better Off Overall Test if the Fair Work Commission is satisfied
that each award covered employee, and prospective award covered employee, would be better off overall if
the agreement applied than if the relevant Modern Award applied.
Summary
Consensus was reached at the Jobs and Skills Summit that the existing genuine agreement requirements are
onerous, complex and unnecessarily prescriptive. This option is not preferred because it retains unnecessary
complexity and red tape. Without improvements to the pre-approval and approval process for agreements,
the other preferred measures in this package will be undermined.
Option 2 - Remove unnecessary complexity and make the
Better Off Overall Test simple, flexible and fair (preferred)
This option includes amendments to simplify the enterprise agreement pre-approval process and the Better
Off Overall Test. This option ensures that the pre-approval process is flexible, common sense and user-friendly.
The approval process will be returned to its original intent reducing regulatory burden while ensuring the
independent Tribunal is adequately empowered to oversee bargaining and bargaining outcomes, ensuring
fairness and efficiency.
Simplifying the enterprise agreement approval process
This option would replace the above steps and the current genuine agreement requirements in the Fair Work
Act with a broad requirement that the Fair Work Commission must be satisfied that the agreement has been
genuinely agreed. To assist parties, guidance (such as a statement of best practice) would be issued by the Fair
Work Commission to set out clear expectations for the bargaining parties. The guidance would include
requirements to consider matters such as:
• the ability of employees to vote in a free and informed manner on the agreement
• the active participation of employees or their representatives in the bargaining process (including
their access to relevant expertise, advice and representation)
• whether employee bargaining representatives, and employees representing registered organisations,
have been provided sufficient training and time during working hours to effectively represent their
constituents in bargaining
• the authenticity and fairness of the agreement-making process as identified by the Federal Court in
cases concerning 'genuine agreement'.
Making the Better Off Overall Test simpler
This option would amend the Fair Work Act to provide that:
• When considering whether a proposed enterprise agreements meets the Better Off Overall Test, the
Fair Work Commission give primary consideration to the views of the bargaining representatives;
• The Better Off Overall Test is applied as a global test and does not require comparison with awards on
a line-by-line basis, consistent with the original intention;
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• The 'any prospective employee' test is replaced with a 'reasonably foreseeable circumstances' test, to
address a major complexity with the current requirements.
As a safeguard, the option includes a new 'reconsideration process' which will allow employees or their
representatives to seek a reconsideration of the Better Off Overall Test where there has been a material
change in working arrangements, or where their circumstances were not properly considered during the
approval process. Reconsideration might involve the employer providing an undertaking at approval that says
they will provide reconciliations and backpay if required, or by amendment to the agreement, or both of these
measures. The intention of these provisions is to address potential issues relating to material changes to work
not considered at the initial approval stage. The reconsideration process is not intended to undermine the
validity of the agreement or open the agreement up for renegotiation or complete reconsideration.
The Fair Work Commission will be given discretion to work with the parties during the approval process in a
constructive manner, to consider specific objections and to vary or excise terms that do not otherwise meet
the Better Off Overall Test. The aim of this proposal is to limit undertakings (which can make it far harder for
workers and managers to interpret the document and lead to future legal disputes if poorly drafted) and
delays in agreement commencement.
Summary
This option is preferred because it addresses procedural inefficiencies that have developed over the life of the
current bargaining framework. Addressing onerous pre-approval steps, returning the Better Off Overall Test to
its original intent and ensuring that agreements reached in good faith between bargaining parties are
respected, makes the bargaining process more attractive to all. This option supports the other preferred
options by making the bargaining process itself flexible, simple and fair.
Option 3 - simplifies the enterprise agreement approval steps
and amend the Better Off Overall Test to apply to classes or
groups
This option includes amendments to simplify the genuine agreement requirements by reducing them to the
employee ballot to approve an agreement and amend the Better Off Overall Test.
Simplifying the enterprise agreement approval steps
This option would remove most of the pre-approval steps and only retain the employee ballot to approve the
agreement. For example:
• The agreement was made:
o if the proposed agreement is a single-enterprise agreement - when a majority of those
employees who cast a valid vote approved the agreement, or
o if the proposed agreement is a multi-enterprise agreement - when a majority of the
employees of at least one employer who cast a valid vote approved the agreement.
Better Off Overall Test
This option would amend the Better Off Overall Test to apply the test to specified classes or groups of
employees, removing the requirement that it be applied against each award covered and prospective award
covered employee. For example, a class or group could include employees within the same classification or
working the same roster pattern.
Summary
This option is not preferred because by removing all pre-approval requirements apart from the employee vote,
there are no safeguards to ensure that employees genuinely agreed to the agreement. The preferred option
however also simplifies the current pre-approval steps but includes safeguards such as the statement of best
practice issued by the Fair Work Commission to assist parties to ensure that employees genuinely agree to the
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Regulation Impact Statement
enterprise agreement. Similarly, changes to the Better Off Overall Test must be carefully considered to ensure
that independent oversight is not removed at the expense of fairness in bargained outcomes.
3.5 Increase the capacity of the Fair Work
Commission to help workers and businesses
reach agreements
Option 1 - Status Quo
Under this option, there will be no amendment to the legislation and the powers of the Fair Work Commission
to assist parties in bargaining will remain as they are. As discussed above, under section 240 of the Fair Work
Act a bargaining party may apply to the Fair Work Commission for assistance to deal with a bargaining dispute
and the Fair Work Commission can arbitrate the dispute with the agreement of both bargaining parties. For
voluntary multi-employer bargaining under section 172 (3) of the Fair Work Act, all bargaining parties must
agree to the Fair Work Commission conciliating and/or arbitrating a dispute.
This option is not preferred because it does not address the inefficiencies caused by surface and protracted
bargaining. The options for parties to progress bargaining where negotiations are at a deadlock, or to bring
protracted bargaining to an end, are limited. Generally, the only option is industrial action, which can inflame
tensions and harm businesses and employees. Stakeholders agree that inefficiencies in the bargaining system
can act as a disincentive for employers to come to the table and bargain with their employees. Maintaining the
status quo is likely to contribute to a decline in bargaining or act as a dampener on the anticipated positive
effects of the other measures proposed by this reform.
Option 2 - Increase the capacity of the Fair Work Commission
to help workers and businesses reach agreements (preferred)
This option increases the capacity of the Fair Work Commission to deal with bargaining disputes under the Fair
Work Act. It applies to the Supported Bargaining Stream, Single Interest Bargaining Stream and Single
Enterprise Bargaining Stream, but not the Co-Operative Workplaces Stream (use of which is entirely
voluntary). These changes:
empower the Fair Work Commission to make a newly created intractable bargaining declaration if, taking into
account the views of the bargaining parties, it is satisfied that there is no reasonable prospect of agreement by
other means, and making the declaration is reasonable in all the circumstances.
• Permit a bargaining representative to unilaterally apply to the Fair Work Commission for an
intractable bargaining declaration;
o Once the Fair Work Commission has decided to arbitrate the agreement (by making an
intractable bargaining declaration), the Fair Work Commission be given discretion to order
the parties into a further negotiation period, for example 21 days, to reach agreement by
themselves to avoid arbitration, and encourage parties to take a proportionate approach to
proceedings (for instance, last-offer arbitration rules).
o The Fair Work Commission would determine all terms of the agreement not agreed at the
point it decides to arbitrate, to avoid agreement-making becoming a series of arbitrated
outcomes.
o The Fair Work Commission would issue an intractable bargaining workplace determination,
incorporating all agreed and arbitrated terms, at the conclusion of the arbitration process,
which brings the bargaining period to an end.
This option addresses a gap in the framework for progressing bargaining where surface bargaining is occurring
or parties are in deadlock or protracted bargaining and is preferred. This proposal gives bargaining
representatives alternate options to progress bargaining with the assistance of the independent Tribunal. The
Senate 35 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
proposal ensures that bargaining continues in good faith and that the Fair Work Commission does not become
a default or preferred option. The Fair Work Commission will only be able to arbitrate when it considers that
bargaining is genuinely intractable, and it will have the powers to bring parties together for 'last-ditch'
attempts at resolution before arbitration
Option 3 - Increase the capacity of the Fair Work Commission
to help workers and businesses reach agreements
This option still uses mandatory arbitration like option 1 but stipulates the method of arbitration and sets
boundaries to the outcomes that the Fair Work Commission can order.
This option would see the Fair Work Commission required to finalise arbitration within a set period of time (for
example 3 months) after the intractable bargaining declaration is made and would require the Commission to
determine outcomes within defined boundaries.
There are several options for defining the boundaries of the Fair Work Commission's power to determine
agreements. The employer and employees could be required to make their 'last-offer' and the Fair Work
Commission determine which of the two offers should be accepted, the power to award increases in wages
could be limited to no more than an objective marker (e.g. CPI) +/- a pre-determined percentage, the parties
can put in their log of claims on outstanding matters and the Fair Work Commission be required to issue a
determination that is no lower or higher than the two positions .
This option is not preferred. Defining the process and limits of the Fair Work Commission's powers to arbitrate
has the potential to undermine good faith bargaining generally (i.e. leads to gaming the system) and
unnecessarily limits the ability of the Fair Work Commission to act flexibly and work with the parties to reach
positive outcomes. Setting a defined period of time in which the Fair Work Commission has to arbitrate will
provide comfort to those concerned that third-party arbitration is a lengthy and costly process but any period
of time chosen would be artificial and arbitrary. Dictating process to the independent, quasi-judicial Tribunal
also undermines the independence and expertise of the Fair Work Commission and its Members. The
Commission generally has a positive track record as relates to measuring and setting its own performance
measures to meet community expectations and should be permitted the broadest discretion to continue doing
so
Fair Work Legislation 36 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
4. What is the likely net benefit
of each option?
There are limited observations able to be made through macroeconomic data, which may not be ideally suited
to isolating the effects of reform. Related to this, there is no single measure by which to gauge whether a
workplace relations system overall has been successful - examples of measures used previously are:
• lower unemployment
• fairer terms and conditions of employment
• anchoring low inflationary expectations
• higher real net national disposable income
• increased productivity.
As such, formally outlining the precise impacts of individual proposals with any certainty is not possible -
rather we have shown, based on the research and data available, the probable impacts on employees and
employers, while acknowledging the limitations of the data. Beyond this, the outcomes of any negotiation
between employers and employees is determined by the parties, and the results can be wide-ranging and
difficult to predict. This is because a business or businesses and employees will make enterprise agreements
that suit their specific circumstances and though there is some evidence of higher wages and productivity
improvements from enterprise bargaining, that may not be directly attributable to any one aspect of the
system.
4.1 Ensure the process for agreement
termination is fit for purpose and fair
Problem: Employers applying to unilaterally terminate an agreement can undermine ongoing negotiations
for a new enterprise agreement by threatening a severe consequence for not agreeing to the terms and
conditions of the proposed new enterprise agreement.
Option 1 is the status quo. There will be no amendment to the legislation. Employers can continue to rely
on the precedent set by the Fair Work Commission regarding unilateral termination and continue to apply,
or threaten to apply, to the Fair Work Commission to terminate a nominally expired agreement.
Option 2 (preferred) ensures the process for agreement termination is fit for purpose and fair. This option
retains the ability to terminate agreements in exceptional and appropriate circumstances and directly
addresses the emergence of the unfair bargaining tactic of applying to, or threatening to, terminate
agreements.
Option 3 (not preferred) ensures the process for agreement termination is fit for purpose and fair through a
'front end' test. The test would prevent the Fair Work Commission from considering applications to
terminate an enterprise agreement after the nominal expiry date under section 225 of the Fair Work Act,
such as preventing an application from being made during bargaining.
Senate 37 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Option 1 - Status Quo
The net effect of not modifying current provisions is that the behaviour of some employers who choose to
terminate an enterprise agreement past its nominal expiry date will continue and ultimately contribute to a
bargaining process that is not constructive for either party. On termination of an enterprise agreement,
employees will have their pay and conditions determined by the relevant Modern Award or the minimum
safety net, which would have a significant detrimental effect on them. If a termination occurs during
bargaining, it may force employees to vote for an agreement that provides for less beneficial terms than their
current agreement, and significantly strengthen the bargaining power of the employer.
The Department considers that the ongoing impact on employees of the ability for employers to seek to
terminate their enterprise agreements unilaterally is unacceptable. The impact the status quo also has on the
dynamics of enterprise bargaining, by allowing employers to circumvent existing dispute resolution processes,
harms the workplace relation system and may be contributing to declining rates of bargaining.
Case study
In January 2022, a major Australian employer applied to the Fair Work Commission to terminate its
nominally expired enterprise agreement due to deadlocked bargaining negotiations. The employer had been
bargaining with its employees for a new agreement for the last 6 months, but that agreement had been
rejected by employees with 97 per cent voting no. The new agreement included a 2 year pay freeze and
more flexible rostering. If the Fair Work Commission had agreed to terminate the agreement, employees
would have reverted to the Modern Award, resulting in a 37 per cent pay cut to some of those employees
according to union estimates.
A few months after the employer lodged the termination application, 85 per cent of its employees voted to
approve the new agreement, even though the terms and conditions were largely the same as the agreement
that had attracted the 97 per cent 'no' vote.
Option 2 - Ensure the process for agreement termination is fit
for purpose and fair (preferred)
The Department recognises that the reasons for making an application to terminate an enterprise agreement
are multifaceted and can be legitimate. Agreements are often terminated for administrative reasons (there are
no employees covered by the agreement) or out of fairness (terminating a 'zombie' agreement) and these
applications should be able to continue.
The preferred option promotes enterprise bargaining in the workplace. Ensuring the Fair Work Commission is
satisfied that the continued operation of the agreement satisfies one of the statutory criteria will mean that
employers must clearly demonstrate the basis for their application to the Fair Work Commission, which may
increase the cost of applying to have an agreement terminated. There will also be a financial impact for
employers whose application to terminate an enterprise agreement might otherwise have succeeded and
resulted in savings in employee entitlements.
Impacts on employers
The cost impact of this proposal has been estimated by assessing the impact on employers from having to
comply with the new requirements. The number of agreement termination applications from 2020-21, the
most recent year for which data is available, has been used as the base for the costing. Out of 270 applications,
1 matter potentially would have been impacted by this option, as it was made by an employer and opposed by
employees.67 On this basis, the Department estimates that the regulatory burden would be minimal.
We assume that a business that is having issues with financial viability will have readily available evidence to
demonstrate that. Then we make a conservative assumption that it would take a full time HR Professional an
67
Ladehai Pty Ltd ATF Kessells Road Unit Trust T/A BIG 4 North Star Holiday Resort & Caravan Park [2021]
FWCA 3504
Fair Work Legislation 38 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
additional 3 days to prepare and lodge material that illustrates that the businesses enterprise agreement is
affecting business viability.
• Therefore, the following formula will be used to calculate the cost to business:
o (Total hours x labour cost) X number of applications 2020-21, where:
â–ª Total hours = Number of days X number of working hours in a day
â–ª Labour cost = $79.63 per hour
Based on data from past reporting year, the impact to business per annum would be:
((3 x7.5) x $79.63) x 1 = $1,792
Employers who previously would have had their agreement terminated will have to apply their current
agreement or replace it with a new agreement. These costs are firm specific and impossible to cost accurately.
A major benefit for employers of all the enterprise bargaining reforms is flexible options to come to agreement
that meets the needs of their business and a new streamlined approval process .
The Department considers that this modest impact to business is warranted given the gravity of consequences
for employees if their enterprise agreement is terminated without their consent.
The Department estimates that it will take approximately 15 mins for an employer to read a factsheet at the
Fair Work Commission website on these provisions at a cost of approximately $20 (25% of $79.63).
Impacts on employees
This option will rebalance the power in bargaining by ensuring that employees cannot be coerced into
accepting inferior conditions due to the threat of falling back on the Modern Award. Such was the case in the
Griffin Coal termination case where employees would have had their pay cut by an estimated 40 per cent, or
the case study above where employees did accept inferior conditions after being threatened with termination
of their existing agreement. Because termination is often used as a threat but is not acted on, i.e. no
termination application is lodged with the Fair Work Commission, there is no way of measuring how many
employers use the threat of termination as a bargaining tactic, and what sort of reduction in pay and
conditions employees therefore accept. However, closing this loophole in the current bargaining framework
will help to level the playing field in bargaining for a new agreement.
Employees may still face the impact of resisting an application for unilateral termination of their agreement.
However, the application, or the threat of an application, will carry less weight as the outcome will not result
in the loss of take-home pay. This will allow employees to continue to engage with enterprise bargaining in a
manner intended by the Fair Work Act. This option will also reduce the likelihood of a significant loss of
entitlements for employees because of their agreement being terminated.
There will be some cases where the Fair Work Commission can terminate an agreement resulting in a loss of
employee pay and conditions, where there is a significant threat to business viability, termination would likely
save jobs, and if the agreement includes termination entitlements above the award, that the employers give a
guarantee that these will be maintained. The Department considers that in situations of a significant threat to
viability, it would be preferable to terminate an agreement if it will maintain employees' jobs, even if there is a
reduction in pay and entitlements.
Option 3 - Ensure the process for agreement termination is fit
for purpose and fair through a 'front end' test
This option applies a 'front end test' to agreement termination. There may be some minimal costs on
businesses, though no new regulatory burden, for a small number of employers unable to apply to terminate
their existing agreements for reasons unrelated to bargaining tactics but which fall within the prohibited
timeframe. There may, for example, be rationalising agreements or other functions of an old agreement which
are no longer competitive. However, any impact should be minimal, as the timeframe during which
termination is prohibited is relatively short, and the employer may be able to achieve a similar objective
through a new enterprise agreement negotiation process with employees.
Senate 39 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
While this option goes some way to addressing the behaviour the Government is seeking to prevent, the blunt
nature of a barrier to applications limits the ability of the Fair Work Commission to exercise discretion and
judgement as to the merits of each matter. It may also not be effective in overall preventing this behaviour, as
employers may find ways to bring viable applications outside these windows of opportunity.
4.2 Sunset 'zombie' agreements
Problem: Zombie agreements were not required to be compared against Modern Awards when they were
made (unlike enterprise agreements) and continue to operate unless they are terminated or replaced.
Employees covered by zombie agreements are very likely to have less beneficial terms and conditions than
they would otherwise receive under the relevant Modern Award.
Option 1 is the status quo. Under this option no action would be taken to sunset 'zombie' agreements.
'Zombie' agreements will continue to operate until terminated on application to the Fair Work Commission
or, in relation to collective agreement-based transitional instruments, they are replaced by an enterprise
agreement or workplace determination.
Option 2 (preferred) sunsets 'zombie' agreements but provides employees with the ability to extend. This
option would automatically sunset all 'zombie' agreements after three months after the commencement of
the provisions, but also permit applications to the Fair Work Commission by anyone covered by a collective
zombie agreement to preserve their agreement for a 12-month period if they meet certain criteria.
Option 3 (not preferred) sunsets 'zombie' agreements only. This option would automatically terminate all
'zombie' agreements 12 months from the commencement of the provisions.
Option 1 - Status Quo
The net effect of not modifying the current provisions is that 'zombie' agreements will continue to operate,
resulting in employees continuing to be disadvantaged by inferior entitlements when compared with the
modern employment safety net. Employers on the other hand will continue to enjoy a competitive advantage
over their competitors who must comply with the modern employment safety net.
Assessing the precise number of 'zombie' agreements has always been difficult. 68 There is no way of measuring
exactly how many 'zombie' agreements continue to operate and how many employees they may cover. In
September 2019, the Department estimated that 300,000 to 450,000 employees could still be covered by
'zombie' agreements, 95 per cent of which were in the private sector. This figure was derived using internal
analysis based on the ABS Employee Earnings and Hours publication and the Department's Workplace
Agreements Database.
In some instances, while an agreement-based transitional instrument applies, a Modern Award does not apply.
This rule applies if the transitional instrument is a workplace agreement or determination, preserved State
agreement, Australian Workplace Agreement or pre-reform Australian Workplace Agreement. In other
instances, the old agreement-related instrument prevails over the Modern Award to the extent of the
inconsistency.
As it is difficult to assess how many zombie agreements are still in operation, there is no way of measuring
how many of those zombie agreements include conditions that fall below the minimum provided for in
Modern Awards, or how many might pay above award entitlements. A Senate Committee inquiry from the
early 2000s reported that only 38 per cent of Australian Workplace Agreements covered by a survey made
reference to wage rises, and in 41 per cent of Australian Workplace Agreements one or more loadings such as
overtime had been 'absorbed' into an overall rate of pay. One recent agreement that have been terminated on
application to the Fair Work Commission were depriving employees of approximately $5 per hour on
68
See for example comments made in
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_Employment_and_Workpla
ce_Relations/Completed_inquiries/2004-07/indust_agreements/report/c01.
Fair Work Legislation 40 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Saturdays, $10 on Sundays and $24+ on public holidays.69 Another agreement from 2011 provided casuals with
20 per cent loading while under the award they would have been entitled to 25 per cent. 70
Under the status quo, there must be an application to terminate a zombie agreement, or they continue to
operate in perpetuity. This means that the onus is on employees (where they are not represented by a union),
to apply to the Fair Work Commission to terminate the agreement. For employees, there is an incentive to
apply to terminate their agreement if the Modern Award would provide for better pay and conditions, but
many employees are not familiar with the process involved in terminating an agreement and so may not have
acted to terminate it. While not unheard of, it is uncommon for employees to apply terminate an agreement.
In many instances, due to the age of the instruments, confidentiality in relation to individual instruments, and
difficulty in locating some older instruments, employees may not be able to access relevant information to
make a complete application for termination.
For most employers that are currently able to pay below award rates through the continued operation of their
zombie agreements, they benefit from the status quo as they have a lower wage bill than they would have
under the Modern Award. Therefore, these employers enjoy an unfair competitive advantage over other
businesses in their sector who pay award rates at a minimum.
Even a small number of zombie agreements that pay under the minimum wages and entitlements is
inconsistent with Government's objectives to boost wages and to create fair workplaces.
Option 2 - Sunset 'zombie' agreements but provide
employers and employees with the ability to extend
(preferred)
This option creates some increased regulatory costs for those businesses that are covered by a zombie
agreement. These businesses will need to engage in the bargaining system to agree new and fair entitlements
or otherwise revert to the relevant Modern Award.
The regulatory cost on the business will most likely be the impact of having to change their payroll system to
reflect the changes from either reverting to the Modern Award or from being covered by a new agreement.
Payroll usually costs about $10 a month per employer so we would cost in an additional $5 per employee for
one month to change their payroll.71
For an average size small business of 10 employees the cost would be $5x10 = $50
For an average size medium business of 100 employees the cost would be $5x100 = $500
For an average sized large business of 300 employees the cost would be $5x300 = $1,500
Employers wishing to be covered by an enterprise agreement would need to negotiate a new enterprise
agreement, comply with the relevant bargaining obligations and seek approval for any proposed enterprise
agreement by the Fair Work Commission. If employers choose to bargain rather than be covered by the Modern
Award, the cost to bargain under the existing bargaining system is calculated as
The time spent by staff on bargaining per day is 4.6 hours per day per during the bargaining period for an
employer, which is based on the methodology developed in the RIS for the Fair Work Amendment Bill 2014
and the Fair Work Amendment (Securing Australia's Jobs and Economic Recovery) Bill 2020. The Department
has estimated that a staff member on a bargaining team would spend approximately 23 hours per week on the
negotiations and an employee would spend 60% of their ordinary weekly hours on bargaining. The median
bargaining time is calculated using data from the forms used to apply for agreement approval and is the time
taken from when bargaining commences to the ballot for the agreement.
Hours per day bargaining x labour cost x median bargaining time per employer (by size of business)
69
Empire Holdings (Qld) Pty Ltd t/a Empire Hotel and Cloudland [2022] FWCA 62.
70
Zentfeld v IPCA (VIC, ACT & NT) [2022] FWCA 1941
71
Bark.com, How much do Payroll Services cost?, accessed 3 October 2022,
Senate 41 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Small business: 4.6 x $79.63 x 62 = $22,710
Medium Business: 4.6 x $79.63 x 150 = $54,944
Large Business: 4.6 x $79.63 x 225 = $82,417
However, if the reforms to simplify the agreement pre-approval steps and the Better Off Overall Test (outlined
in section 3.4 and 4.4) are agreed to, the process will be simpler and quicker for bargaining parties, therefore
resulting in a cost reduction compared with the costs outlined above.
Bargaining could disrupt business operations - for example, there may be front-end costs of bargaining such as
preparing agreement terms and explanatory materials. These issues are, however, unlikely to have a significant
impact for most businesses, noting that the sunset period is 12 months so employers can fit tasks such as
preparing material around their business operations. Any costs incurred would have been significantly offset
over time by having an agreement that paid below the rates that their competitors would have paid. Where
employers have voluntarily maintained employment conditions in line with Modern Award entitlements,
employers may be able to maintain existing arrangements without bargaining for a new enterprise agreement.
Businesses currently using zombie agreements to pay below market rates for labour and therefore gain a
competitive advantage will be impacted by this option. The Department observes that these businesses may not
be operating at the same level of efficiency as their competitors, as they have not had to face the discipline of
paying market rates for labour. The looming sunsetting of their zombie agreements will cause these businesses
disruption, but over time may improve their productivity as they must adapt their business practices to modern
workplace conditions. This will also have positive impacts for businesses not using zombie agreements, since
they will not be facing competitive pressure based on labour costs.
The ability to apply for a transition period of up to four years will minimise regulatory burden and cost by giving
employers and employees more time to explore alternate options and, where appropriate, negotiate
replacement conditions and entitlements in a new enterprise agreement, measured against the modern safety
net.
The Fair Work Commission can approve an extension of the sunset date if it is satisfied that employees would
otherwise be better off overall when compared to the Modern Award. This would ensure that those 'zombie'
agreements that disadvantage employees would be captured by the policy, while allowing those that do not
disadvantage employees to continue for a further period to allow the participants to modernise their industrial
arrangements.
The Department recognises that employees covered by individual-based agreements like Australian Workplace
Agreements could be impacted by the automatic sunsetting of their agreement. One benefit for employees is
for those covered by Australian Workplace Agreements who are unable to terminate their instrument because
they have lost the paperwork necessary to make an application. The Department is aware the Fair Work
Commission receives regular inquiries from applicants without the requisite information to terminate their
Agreement.
The Department is cognisant of the risks automatic sunsetting poses. Employees on individual agreements are
generally paid in excess of award rates, and the Department is aware of their use in the mining sector, for
instance. The risk posed by this would be that those affected employees would be only covered by their relevant
Modern Award. The Department considers this risk is mitigated by the following factors:
• An employee covered by an Australian Workplace Agreement can currently unilaterally apply to the
Fair Work Commission to terminate the instrument.
• Employees still covered by Australian Workplace Agreements tend to be in high-paid, high-skilled
roles. Employers are likely to retain these employees by offering commensurate remuneration via a
common law contract.
• The ability to apply to extend the sunset date of these instruments offers a safeguard against
disadvantage.
A new process in the Fair Work Commission to apply for an extension of the sunset date would involve some
complexity and regulatory burden as employers would need to fill out and submit an application to extend and
Fair Work Legislation 42 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
engage with requests from the Fair Work Commission to submit material or attend conferences. The Fair Work
Commission is currently in the process of moving all agreement related forms online, and conferences are
generally held virtually which is more convenient for most users. 72 It is not anticipated that there are significant
numbers of 'zombie' agreements that would have superior employee entitlements as they were made so long
ago, although it is impossible to be precise about expected numbers.
The Department estimates that it will take approximately 15 minutes for an employer to read a factsheet at
the Fair Work Commission website on these provisions at a cost of approximately $20 (25% of $79.63).
The Department considers that this minor regulatory cost for businesses is acceptable, when compared to the
significant impact that the status quo has on affected employees, businesses without zombie agreements, and
the confidence the public has in the enterprise bargaining system.
Option 3 - Sunset 'zombie' agreements only
This option creates some increased regulatory costs for impacted businesses. These businesses will need to
engage in the bargaining system to agree new and fair entitlements or otherwise revert to the relevant Modern
Award. The cost to bargain is the same as the bargaining costs provided in option 2 above:
Hours per day bargaining x labour cost x median bargaining time per employer (by size of business) 73
Small business: 4.6 x $79.63 x 62 = $22,710
Medium Business: 4.6 x $79.63 x 150 = $54,944
Large Business: 4.6 x $79.63 x 225 = $82,417
Employers wishing to negotiate a new enterprise agreement would need to comply with the relevant bargaining
obligations and seek approval for any proposed enterprise agreement by the Fair Work Commission. The Fair
Work Commission would assess any new enterprise agreement in the ordinary way. Bargaining could disrupt
business operations, although is unlikely to have a significant impact for most businesses. In some instances,
employers may be able to maintain existing arrangements without bargaining for a new enterprise agreement
by, for example, varying common law contracts of employment or by relying upon individual flexibility
arrangements under Modern Awards.
Employers wishing to revert to the relevant award will be required to review HR/payroll arrangements to ensure
compliance As payroll usually costs about $10 a month per employer, we have calculated an additional $5 per
employee for one month to update payroll systems to reflect the pay and conditions under the Modern Award.
For an average size small business of 10 employees the cost would be $5x10 = $50
For an average size medium business of 100 employees the cost would be $5x100 = $500
For an average sized large business of 300 employees the cost would be $5x300 = $1,500
There is a risk that for some employees, automatic termination of 'zombie' agreements will disadvantage them.
This risk would arise where a 'zombie' agreement provides for superior entitlements overall than those in the
relevant Modern Award or enterprise agreement. The Department does not have data on how many employees
have superior entitlements under their zombie agreement, but the Department assumes the number would be
low, as any superior rates would likely have now fallen below the award. It is possible that in some cases,
employers have chosen to voluntarily pay above award rates despite being covered by a zombie agreement. .
The risk would only arise where an employer is not willing to voluntarily maintain those better entitlements if
not otherwise bound to do so (for example, by contract), and decides to revert the employee to the minimum
entitlements in the Modern Award or otherwise applicable enterprise agreement. 22
72
Fair Work Commission, President's Statement - Enterprise agreements timeliness and online forms, 20
October 2022.
73
Department of Employment and Workplace Relations, Workplace Agreements Database, 2022, unpublished
data. Median bargaining time for all agreements
Senate 43 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
The Department does not prefer this option because there is a risk of a small number of employees being
adversely impacted by their zombie agreements being terminated without being given the opportunity to extend
their current arrangements in order to put in place alternative arrangements.
4.3 Improving access to single and multi-
employer agreements
Problem: The proportion of employees covered by enterprise agreements has been decreasing since its
peak in 2010.
Option 1 is the status quo. Under this option there will be no amendment to legislation to improve access
to single and multi-employer agreements.
Option 2 (preferred) improves access to single and multi-employer agreements. This option ensures
workers and businesses have flexible options for reaching agreements, including removing unnecessary
limitations on access to existing single and multi-employer bargaining arrangements under the Fair Work
Act.
Option 3 (not preferred) proposes to ease some restrictions and remove some limitations to access single
and multi-employer bargaining.
Option 1 - Status Quo
While the current provisions allow access to single-interest bargaining for both private and public sector
employers, there are additional steps for employers that are not franchisees. For those employers the process
currently involves two steps: an application for a Ministerial declaration, followed by a further application to
the Fair Work Commission for a single interest authorisation. Franchisees only need to seek an authorisation
from the Fair Work Commission.
The cost of having to apply for a Ministerial declaration is calculated at three full days of labour:
3 x 7.5 x $79. 63 = $1,791
The unnecessary limits of the current provisions are evidenced by the fact that only five applications for
Ministerial declarations and 10 applications for single interest employer authorisations are made per year.
Applicants are usually organisations in feminised and substantially government funded sectors, such as
independent schools and health service providers, and also franchisees. Since 2019, there have been 19
applications for Single Interest Employer Authorisations for Ministerial Declaration.
The Fair Work Act currently includes a special multi-enterprise bargaining stream for low-paid employees who
have not historically had access to collective bargaining or who face substantial difficulty in bargaining at the
enterprise level. It was hoped that these provisions would assist in closing the gender pay gap by lifting wages
and conditions in feminised sectors, including community services sectors, cleaning and early childhood
education and care.74 These provisions have not been successful and require substantial reform. To access the
low-paid bargaining stream, a bargaining representative for a proposed multi-enterprise agreement or a
relevant employee organisation needs to apply to the Fair Work Commission for a 'low-paid authorisation'.
There have been 4 applications for a Low Paid Authorisation with only 1 application granted.
For the multi-employer stream, since 2019 there have only been 49 agreements made using this stream, in
industries including education, health and financial and insurance services. Maintaining the status quo will not
lead to an increase in bargaining in the multi-employer stream.
The Department considers that the impact on employees, many of whom are low paid, of not having the
opportunity to negotiate and be covered by a collective agreement, is significant and warrants the selection of
74
Fair Work Bill 2008, Explanatory Memorandum, para 992.
Fair Work Legislation 44 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
an alternative option other than the status quo. The Department also considers that the inefficiencies present
in the current multi-enterprise agreement process are dissuading employers from making collective
agreements, which means they are impacted by missing out on the potential benefits of enterprise bargaining.
Option 2 - Improving access to single and multi-employer
agreements (preferred)
This policy proposal builds upon the existing framework within the Fair Work Act and removes unnecessary
regulatory burdens such as Ministerial declarations and expands and clarifies the scope of existing bargaining
streams such as the low-paid bargaining stream.
Ensuring greater access to enterprise bargaining for employers and employees to negotiate fair pay and
conditions can drive productivity improvements and innovation at the firm level. This generates cooperative
workplace relationships that benefit employees through higher wages and better conditions, and businesses
through productivity improvements and higher profits.
The proposal does expand the requirement for employers to be required to come to the table and engage in
good faith negotiations, but only where the majority of their employees who will be covered by the agreement
demonstrate majority support to the Fair Work Commission. Additional safeguards around taking protected
industrial action will help to reduce the likelihood of industrial action and allay concerns about widespread
action being taken. The unnecessary limits of the current provisions are evidenced by the low usage of these
streams: between 2018-2021 there were on average less than 8 applications for a single interest employer
authorisation made per year, and a lower number of Ministerial declarations. Applicants are usually
organisations in feminised and substantially government funded sectors, such as independent schools and
health service providers, and also franchisees. Since 2019, there have been 19 applications for Single Interest
Employer Authorisations for Ministerial Declaration. Making the single interest stream more accessible will
increase the uptake of bargaining particularly amongst related businesses and franchisees.
The Supported Bargaining Stream will address limitations with the current framework and ensure that workers
in lower paid, government-funded sectors have an improved pathway to the benefits of bargaining that are
disproportionately currently enjoyed by male-dominated sectors.
The Cooperative Workplaces Bargaining Stream will allow businesses to voluntarily opt in to be covered by one
industrial instrument instead of multiple awards. Small business in particular has previously found bargaining
difficult at the single enterprise level due to the expertise and resources required. Having an "opt in"
opportunity to bargain across multiple employers will create economies of scale and will particularly benefit
smaller businesses.
Small businesses, those in temporary or part-time work, women and feminised and service sector industries
have historically had limited access to bargaining. Targeted multi-employer bargaining will ensure that these
groups enjoy the benefits of bargaining, such as higher wages and improved productivity, that are
disproportionately enjoyed by men, big business, and those outside low-paid and care sectors.
For small business an enhanced multi-employer bargaining stream will result in improved efficiencies by
having, in most cases, one industrial instrument to apply instead of the administrative burden and complexity
of having to apply multiple awards. Small business has previously found bargaining difficult at the single
enterprise level due to the resources required to bargain which larger businesses have ready access to. Having
an opportunity to bargain across multiple employers will reduce the resources necessary to bargain for these
businesses. The benefit to employers may increase where employers voluntarily opt into agreements that are
already made, as they receive the benefits of the enterprise bargaining without the cost of bargaining. It is
noted however that such employers will not have had the opportunity to influence bargaining.
Impacts on employers
In assessing the impacts on employers from amendments to multi-employer bargaining we have assumed that
employers whether they are voluntary participants or compelled, will likely share costs among employers.
Small business (< 15 employees) will be exempt from the single interest stream, so where costs are presented
for small business, they are for the supported bargaining stream. It is assumed that new participants will likely
Senate 45 Fair Work Legislation
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Better Pay) Bill 2022
Regulation Impact Statement
require the need of an external consultant to assist with the bargaining round. The average number of
employers covered by a multi-enterprise agreement is used as the base number for the costings, which has
been calculated using data from the Department's Workplace Agreements Database. Each application form for
a multi-enterprise agreement includes the number of employers to be covered by an agreement. The average
number of employers is calculated by dividing the total number of employers covered by the number of multi-
enterprise agreements (51 agreements). The median bargaining time for an agreement has been calculated
using the days between the notification time (when the employer notifies employees of bargaining) and the
day the employees vote.
The time spent by staff on bargaining per day is 4.6 hours per day per bargaining period for an employer, is
based on the methodology developed in the Regulator Impact Statement for the Fair Work Amendment Bill
2014 and the Fair Work Amendment (Securing Australia's Jobs and Economic Recovery) Bill 2020, as the basis
for these calculations. The Department has estimated that a staff member on a bargaining team would spend
approximately 23 hours per week on the negotiations and an employee would spend 60% of their ordinary
weekly hours on bargaining.
Therefore, the following formula will be used to calculate the cost for business.
Average number of employers per multi-enterprise agreement x 4.6 hours x labour cost x median days of
bargaining per multi-enterprise agreement by size of business. 75
15.2 x 4.6 x $79.63 x 31 days divided by 15.2 (small business) = $11,355 per small business
15.2 x 4.6 x $79.63 x 170 days divided by 15.2 (medium business) = $62,270 per medium business
15.2 x 4.6 x $79.63 x 200 days divided by 15.2 (large business) = $73,259 per large business
We anticipate that an employer organisation or one or two employers may lead negotiations for the employer
side in negotiation of a multi-enterprise agreement and may incur external costs as a result for professional
services to manage the bargaining process. It's likely as well that these employers will share external costs with
other employers involved in the bargaining process.
For this costing we have used an estimate that two employers will lead the negotiations for a multi-enterprise
agreement and factored in a professional services fee of $175 per hour.76
$175 x 4.6 x 31 days (small business) x 2 = $49,910
$175 x 4.6 x 170 days (medium) x 2= $273,700
$175 x 4.6 x 200 days (large) x 2 = $322,000
Then we will divide it by the average number of employers currently covered by multi-enterprise agreements.
$49,910 divided by 15.2 = $3,283 per small business
$273,700 divided by 15.2 = $12,878 per medium business
$322,000 divided by 15.2 = $21,052. per large business.
75
Department of Employment and Workplace Relations, Workplace Agreements Database, 2022, unpublished
data.
76
How Much Should I Charge As A Consultant In Australia? (authentic.com.au)
Fair Work Legislation 46 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Regulation Impact Statement
Therefore the total cost per business using these estimates are:
Cost of bargaining per business plus cost of external consultants per business 77
Small business: $14,638
Medium Business: $75,148
Large Business: $94,311
Positive Impacts for Business
The significant benefits of being covered by an enterprise agreement and the costs that may be associated
with remaining covered by a Modern Award outweigh the additional cost for businesses to engage with the
new multi-enterprise bargaining streams. Businesses are often covered by multiple Modern Awards which can
be complicated and difficult to interpret. An enterprise agreement enables an employer to have one industrial
instrument which applies to a business which simplifies their workplace relations arrangements There are also
the significant productivity improvements that can come with bargaining like training incentive schemes which
can help foster a more educated, productive workforce. Employers may raise concerns about being compelled
to bargain. The Fair Work Act has provisions for Majority Support Determinations which compel businesses to
bargain for single enterprise bargaining. This option extends ability to seek a Majority Support Determination
to the single interest stream. There are safeguards in place to ensure that if an employer is compelled they
cannot be a small business employer, not be covered by an existing single enterprise agreement, parties must
have a chance to express their views, the employees have voted by majority vote to bargain and all
requirements of the single interest stream such as common interests are met. Employers can also apply to the
Fair Work Commission to remove themselves from bargaining for a single interest agreement if the
Commission is satisfied their circumstances have changed and it's no longer appropriate.
Case Study
10 medium-sized fish and chip shops with seafood processing plants in Queensland have decided or been
compelled to bargain together in the single interest stream. In their current arrangements they must
enforce 4 awards to run their business, the Seafood Processing Award, the Retail Award, the Fast Food
Award and the Restaurant Award. This has led to increased compliance costs for business. As part of the
single interest stream the business now is now covered by one enterprise agreement, instead of four
awards. The employees of the fish and chips shops now have had the opportunity to bargain in the single
interest stream, which has changed the power balance. The agreement has productivity benefits as it
contains incentives for staff to undertake training for new seafood processing equipment and has wages
that are higher than the relevant Modern Awards.
There are no regulatory impacts from change to the multi-enterprise stream, now called the Co-operative
workplaces stream. The stream retains the majority of existing provisions and is completely voluntary to enter
and leave as is currently the case. There will no access to Majority Support Determinations or to industrial
action in this stream.
The changes regarding agreement content for positive measures is non-regulatory. It allows parties to bargain
over such measures but does not impose an outcome.
In regard to industrial action, employers have also raised concerns about the potential for protected industrial
action as part of multi-employer bargaining. The purpose of these reforms is not to allow for industry-wide
strikes. Industrial action will be extended to the Supported Bargaining Stream with additional safeguards,
which will also apply to the Single Interest Stream (which already permits taking protected industrial action).
77
These costs are estimates only, based on Departmental data and external sources. Many employers may be
members of employer organisations which will reduce their costs significantly. Also, many businesses already
incur costs for bargaining as part of business as usual processes and do not have to make major changes within
their business cost structure to facilitate bargaining. The Department estimates that it will take approximately
15 minutes for an employer to read a factsheet at the Fair Work Commission website on these provisions at a
cost of approximately $20 (25% of $79.63).
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These include compulsory conciliation, an extended notice period of 120 hours, and enhanced dispute
resolution powers for the Fair Work Commission, which will enable it to settle disputes during bargaining,
helping to avoid industrial action. In addition, employers will continue to have the ability to apply to the Fair
Work Commission to suspend or terminate protected industrial action on a range of grounds, including
threatening to endanger the life, personal safety, health or welfare of the population or part of it; causing
significant damage to the Australian economy or an important part of it; or when the action is protracted and
is causing, or is going to cause, significant economic harm to the employer or employees who will be covered
by the agreement.
The Department considers the expanded options available to businesses are a net benefit.
Impact on employees
The multi-enterprise agreement proposals will increase bargaining power of employees and their
representatives. Majority Support Determinations that are currently only available for single enterprise
agreements will be extended to multi-enterprise agreements. Opening up the ability for Majority Support
Determinations to be used in the multi-enterprise bargaining streams provides additional options for
employees to make agreements with their employer. The reforms will have a significant positive impact on low
paid employees through the enhanced Supported Bargaining Stream. These reforms are likely to improve
outcomes for low paid workers in feminised industries such as aged care, childcare and health care.
There will be changes to content restrictions of enterprise agreements to allow for positive gender measures
in enterprise agreements. This will mean that parties can now have the choice and flexibility to have such
measures in their agreements which promote gender equity. As mentioned above, Research from the
Bankwest Curtin Economics Centre and the WGEA shows that the combination of gender concentration and
salary differences between men and women within industries contribute to the gender pay gap. Positive
measures may encourage more women to work in high-paying industries, with the net effect to help decrease
the gender pay gap.78 Specifically, this report found that Australia's gender pay gap would fall by more than a
third if a 40:40:20 gender concentration were to be achieved across all industries and occupations. 79 This will
be enacted in tandem with Government support to increase female participation within the workforce as a
whole and within male-dominated sectors.
Case Study
30 aged care centres are specified in a supported bargaining authorisation by the relevant registered
organisation. The workforce is 70 per cent female and low pay is found by the Fair Work Commission to be
prevalent in the aged care industry. Employees in the supported bargaining stream now have additional
bargaining power and access to the additional benefits of the supported bargaining stream, including the
power to direct a person, such as a funding entity, to attend a conference if the FWC is satisfied that their
participation is necessary for the agreement to be made. The resulting enterprise agreement sees their pay
increase significantly, as well as providing dependable wage increases for the life of the agreement.
Industrial action
Amendments to the protected industrial action provisions are proposed to reduce unnecessary administrative
burden and de-escalate bargaining disputes.
To remove the current incentive to take industrial action within 30 days, the validity of a protected action
ballot will be extended to three months from the date that it is approved by employees. It is extremely difficult
to quantify the impact of individual instances of protected industrial action on an individual employer,
however, by no longer requiring employees to take all forms of protected industrial action in the ballot within
78
Duncan AS, Mavisakalyan A and Salazar S (2022), Gender Equity Insights 2022: The State of Inequality in
Australia, BCEC|WGEA Gender Equity Series, Issue #7, October 2022, page 31.
79
Duncan AS, Mavisakalyan A and Salazar S (2022), Gender Equity Insights 2022: The State of Inequality in
Australia, BCEC|WGEA Gender Equity Series, Issue #7, October 2022, page 63.
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Regulation Impact Statement
30 days for such forms of action to remain available, this proposal reduces the incentive to take all forms early
in the process, which should reduce the impact on all parties.
The Fair Work Commission will be empowered to establish a publicly accessible panel of pre-approved ballot
providers, in order to enhance the accessibility and reduce the time and cost of undertaking protected action
ballots, relative to the current default option of postal or attendance ballots via the Australian Electoral
Commission. In addition, new proposals will only allow for protected industrial action if bargaining
representatives attend a conciliation conference held by the Fair Work Commission at the same time as the
protected action ballot is being conducted. There will be a 14-day period in which the conference could take
place. The Fair Work Commission will determine where, when and for how long the conciliation conference is
to take within the maximum 14-day period. If the employee bargaining representative does not attend the
conciliation, any industrial action they take will not be protected. Equally, the employer bargaining
representative must participate in the conciliation in order for employer response action to be protected. Fair
Work Commission conciliation at this stage is likely to contribute to some parties coming to agreement
without protected industrial action being taken, reducing the impact of such action on all parties.
Option 3 - Ease some restrictions and remove some limitations
to access single and multi-employer bargaining
This option retains the existing framework but makes minor changes to the single interest bargaining stream,
low-paid bargaining stream, and multi-employer bargaining stream.
This option retains the existing bargaining streams and so the regulatory change is minimal. For the single
interest stream, unnecessary criteria would be removed when the Fair Work Commission considers a section
247 application. However, Ministerial Declarations would continue to operate for employers other than
franchisees, noting that the narrow scope of the existing single interest bargaining scheme is reflected in there
having recently been around only five applications for Ministerial declarations and 10 applications for single
interest employer authorisations per year. Under this option the $1,181 cost of the Ministerial declaration
would remain as the cost to business.
In regard to the low-paid bargaining stream the Fair Work Commission would no longer be required to
consider the history of bargaining in the industry in which the employees who will be covered by the
agreement work. This will have minimal regulatory impact and would seek to encourage applicants to the low-
paid stream. The new Cooperative Workplaces Stream would receive additional support from the Fair Work
Commission, upon request. This will encourage parties to build cooperative relationships through the
bargaining process.
Regarding industrial action and positive gender measures, this option would see no changes to those
provisions.
The Department does not prefer this option for several reasons. First, the impact of deregulating the single
interest stream is likely to be modest compared to the preferred option and is unlikely to yield a significant
increase in applications for a single interest declaration, therefore minimising the potential benefits to
businesses and employees. Secondly, the minor amendments to the low-paid stream are also unlikely to yield
a significantly increased number of low-paid bargaining authorisations, given the 'history of bargaining'
precondition has not proven to be the major hurdle for previous unsuccessful applications.
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Regulation Impact Statement
4.4 Remove unnecessary complexity and
make the Better Off Overall Test simple,
flexible and fair
Problem: The Fair Work Act has a range of pre-approval requirements that must be considered by the Fair
Work Commission in the approval process. Unnecessary complexity in the approval process contributes to
delays in an agreement being approved.
Option 1 is the status quo. Employees and employers will continue to bargain in accordance with the
framework established by the Fair Work Act and the Fair Work Commission will continue to assess
applications for approval of enterprise agreements against current rules and the interpretation of those
rules.
Option 2 (preferred) removes unnecessary complexity and makes the Better Off Overall Test simple, flexible
and fair. This option includes amendments to simplify the enterprise agreement pre-approval process and
simplify the Better-Off-Overall Test.
Option 3 (not preferred) simplifies the enterprise agreement approval steps and amends the Better Off
Overall Test to apply to classes or groups of employees.
Option 1 - Status Quo
Consensus was reached at the Jobs and Skills Summit that the Better Off Overall Test and the existing genuine
agreement requirements are onerous, complex and unnecessarily prescriptive. Without reform, significant
impacts for employers and workers will continue where an agreement has been reached but cannot be
approved because of a procedural error made during the course of the bargaining process.
The existing cost of bargaining per firm is calculated as:
Hours per day bargaining x labour cost x median bargaining time per employer (by size of business)80
Small business: 4.6 x $79.63 x 62 = $22,710
Medium Business: 4.6 x $79.63 x 150 = $54,944
Large Business: 4.6 x $79.63 x 225 = $82,417
An enterprise agreement currently passes the Better Off Overall Test if the Fair Work Commission is satisfied
that each award covered employee, and prospective award covered employee, would be better off overall if
the agreement applied than if the relevant Modern Award applied. The complexity of the Better Off Overall
Test impacts the length of time the Fair Work Commission takes to consider applications for approval of
enterprise agreements.
In the 2016 Coles Decision, a Full Bench of the Fair Work Commission found that although the Better Off
Overall Test is a global test, if any individual employees or prospective employees are found to not be better
off, the agreement cannot be approved without undertakings. 81 In the months after this decision, the number
of agreements requiring undertakings increased. This suggested the Fair Work Commission was taking a highly
forensic approach to analysing agreements against the Better Off Overall Test, increasing the complexity and
uncertainty of the process.
The Coles Decision, and the subsequent increase in agreements being approved with undertakings, caused a
substantial increase in the time taken to approve enterprise agreements, from a median of 18 days (from
lodgement to approval) in 2015-16 to a high of 76 days in 2017-18. While the Fair Work Commission's 2021-22
report indicates it is now meeting its timeliness benchmarks (of 8 weeks to finalise approvals in 90 per cent of
80
Department of Employment and Workplace Relations, Workplace Agreements Database, 2022, unpublished
data. Median bargaining time for all agreements
81
Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887
Fair Work Legislation 50 Senate
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Regulation Impact Statement
cases), the highly technical and inflexible approach to applying the Better Off Overall Test remains in place.
Employer groups are strongly of the view that the broader decline in enterprise agreement coverage across
the labour market is, in part, referrable to these changes in the application of the test. The status quo retains
entrenched costs to businesses and employees related to the time taken to bargain and the time taken for the
Fair Work Commission to assess agreements for approval. The longer parties spend in bargaining and waiting
for approval from the Fair Work Commission, the greater the cost.
Option 2 - Remove unnecessary complexity and make the
Better Off Overall Test simple, flexible and fair (preferred)
This option introduces a number of proposals that will have a regulatory benefit and one, the Better Off
Overall Test reconsideration process, that has a minor regulatory cost.
Employers and employees will have access to a less onerous agreement making and approval process for
enterprise agreements. The current genuine agreement requirements would be replaced with a broad
requirement for the Fair Work Commission to be satisfied that the agreement has been genuinely agreed. This
will address concerns about complex and prescriptive agreement approval requirements and encourage
unions and employers to build productive, cooperative relationships in the workplace.
The net effect of the proposed suite of changes to the Better Off Overall Test will be that the test becomes
simpler while still retaining key protections for employees. Additionally, the new reconsideration process will
be introduced to allow employees or their representatives to seek a reassessment of the Better Off Overall
Test where there has been a material change in working arrangements, or where their circumstances were not
properly considered during the approval process.
Impact on employers
Changes to Genuine Agreement
During the 7 day access period for an enterprise agreement, the employer must give the employees a copy of
the agreement and any other materials incorporated into the agreement, provide an explanation of the terms
of the agreement and the effect of those terms to employees, and notify the employees of the time and
method of voting for the agreement which starts after the access period.
There will be a net positive benefit to employers in a reduction of the costs associated in bargaining due to the
simplification of the genuine agreement requirements such as the 7-day access period from the median
bargaining time per firm by size of business. 82 Therefore, the cost saving from this proposal for all businesses
who bargain is calculated at
7x 4.6 x $79.63 = $2,564
There would also likely be positive benefits from a shorter approval process.
Simplification of the Better Off Overall Test
There will be a positive benefit from a reduction in complexity regarding the Better Off Overall Test. Currently
the Better Off Overall Test is applied after an agreement is submitted to the Fair Work Commission for
approval. Members of the Fair Work Commission may request undertakings be given by employers to fix
current issues with Better Off Overall Test compliance. This process can contribute to delays in approval of
agreements.
The Fair Work Commission has advised that 41 per cent of agreements require undertakings for Better Off
Overall Test non-compliance. This is approximately 940 agreements (out of 2,292 in 2021-22 financial year).83
We have made a conservative assumption that 20 per cent of these agreements will not require undertakings
due to changes in the Better Off Overall Test. That is approximately 188 agreements.
The Fair Work Commission's benchmarks indicate those applications that are complex (usually involving
undertakings) are approved (in 95 per cent of cases) within 45 working days and simple agreements (in 95 per
82
Departmental Estimate. Extended to 7 days to account for access period
83
Fair Work Commission, unpublished data.
Senate 51 Fair Work Legislation
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Regulation Impact Statement
cent of cases) within 20 days. The distinction between complex and simple agreements is an administrative
one drawn by the Fair Work Commission. Data on the distributional split of complex and simple agreements is
not available. Therefore, we have used the 25-day difference as the basis for the costing. We have also
assumed that an employer will spend an average of 2 hours per day managing their agreement through the
approval process.
Therefore, the benefit for business is:
2 x 25 x $79.63 = $3,981 x 188 = $748,522
Per agreement that is $3,981.
Better Off Overall Test Reconsideration Process
The Better Off Overall Test Reconsideration process proposed is new and does not have a suitable comparator
in the current framework. We are unable to calculate how many agreements would be subject to the Better
Off Overall Test Reconsideration Process. However, we can calculate the cost per firm of having to update
their payroll as a result of undertakings or amendments as a result of the Better Off Overall Test
reconsideration process.
Using costings available in section 4.2 outlined above the cost would be:
For an average size small business of 10 employees the cost would be $5x10 = $50
For an average size medium business of 100 employees the cost would be $5x100 = $500
For an average sized large business of 300 employees the cost would be $5x300 = $1,500
The Department estimates that it will take approximately 15 minutes for an employer to read a factsheet at
the Fair Work Commission website on these provisions at a cost of approximately $20 (25% of $79.63).
Impact on employees
There will be a regulatory cost for employees who apply for the Better Off Overall Test reconsideration
process. Depending on their circumstances they may be required to attend hearings and conferences at the
Fair Work Commission. For employees that are members of a union, it's likely their union will apply for the
Better Off Overall Test reconsideration process. The Department is unable to estimate how many employees
may apply for the Better Off Overall Test reconsideration process.
There will be benefits for employees as part of this process as there is more certainty that their pay and
conditions will remain better off overall than the relevant Modern Award, than would have previously been
the case. It's likely these reforms will stop a new iteration of zombie agreements being created, which will
provide additional benefits in the long term.
Improvements in the approval process will mean less delays for approval of agreements, which will enable
employees to get access to the benefits of bargaining - such as higher wages - sooner.
Option 3 - Extend the time to meet genuine agreement
requirements and amend the Better Off Overall Test to apply
to classes or groups
This option proposes to remove most of the pre-approval steps and only retain the employee ballot to approve
the agreement and change the existing application of the Better Off Overall Test to apply to classes or groups.
Removing most of the pre-approval steps apart from the requirement for employers to facilitate an employee
vote for the agreement will have a regulatory benefit for employers as they would no longer be required to
follow the onerous and prescriptive pre-approval steps. Further, the removal of all time frames in the pre-
approval process, such as the 7 day access period or the 21 days required to pass between giving the
employees the notice of employee representational rights and the vote will significantly decrease the
bargaining time.
Fair Work Legislation 52 Senate
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Regulation Impact Statement
The reduction of the 7-day access period has been costed above. For a reduction of 21 days in bargaining a
business could save up to $7,692 (21x4.6x$79.63). Further, the agreement approval time before the Fair Work
Commission will be reduced if employers are no longer required to prove that they followed the pre-approval
steps. However, under this option there are no safeguards to ensure that employees genuinely agreed to the
agreement. That is because there is no requirement to show that employees were given a copy of the
agreement, to notify employees of the vote, or to explain the terms of the agreement and its effect on
employees.
Under this option, the Better Off Overall Test would be amended to a specified class or groups of employees,
removing the requirement that it be applied as against each award covered and prospective award covered
employee. This may allow agreements to disadvantage certain employees where the group of employees is, as
a whole, not disadvantaged.
This proposal would simplify the assessment of the Better Off Overall Test, as broader classes or groups of
employees can be more quickly assessed against the relevant Modern Award, and there is less scope for
individual roster variations or technical considerations which could slow an approval down. If a simpler Better
Off Overall Test resulted in a shorter approval process, with less undertakings sought by the Fair Work
Commission, this would reduce the regulatory burden on parties. However, depending on how the Fair Work
Commission applies the Better Off Overall Test to classes or groups of employees, it could leave some
employees worse off under the agreement than the relevant Modern Award despite the relevant group of
employees to which they belong being, as a whole, not disadvantaged.
4.5 Increase the capacity of the Fair Work
Commission to help workers and businesses
reach agreements
Problem: Access to arbitration to overcome a bargaining dispute under the Fair Work Act is tightly
restricted. Where parties cannot agree on a new enterprise agreement and bargaining becomes intractable,
the ability to draw negotiations to a close is limited.
Option 1 is the status quo. Currently, under section 240 of the Fair Work Act a bargaining party may apply
to the Fair Work Commission for assistance to deal with a bargaining dispute and the Fair Work Commission
can arbitrate the dispute but only with the agreement of both bargaining parties.
Option 2 (preferred) Improve the capacity of the Fair Work Commission to help workers and businesses
reach agreements. This option increases the capacity of the Fair Work Commission to deal with bargaining
disputes and applies to the Supported Bargaining Stream, Single Interest Bargaining Stream and Single
Enterprise Bargaining Stream but not the Co-Operative Workplaces Stream.
Option 3 (not preferred) increases the capacity of the Fair Work Commission to help workers and
businesses reach agreements with defined limits on process and outcomes.
Option 1 - Status Quo
Currently, under section 240 of the Fair Work Act a bargaining party may apply to the Fair Work Commission
for assistance to deal with a bargaining dispute and the Fair Work Commission can arbitrate the dispute but
only with the agreement of both bargaining parties. For voluntary multi-employer bargaining under section
172 (3) of the Fair Work Act, all bargaining parties must agree to the Fair Work Commission conciliating and/or
arbitrating a dispute (section 240).
Access to arbitration to overcome a bargaining dispute under the Fair Work Act is currently restricted. The Fair
Work Commission can arbitrate a dispute under section 240 with the agreement of the bargaining parties; or
in circumstances where industrial action has been terminated; where bargaining is intractable under the low-
paid bargaining stream; and following the making of a 'serious breach declaration' for repeated breaches of
the good faith bargaining requirements.
Senate 53 Fair Work Legislation
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Maintaining the status quo will mean that bargaining, including protracted bargaining, will continue with its
current regulatory cost to parties. Parties will continue to be able to take industrial action in accordance with
the Fair Work Act and its associated costs.
Case Study - Protracted bargaining84
Recent negotiations for an Australian company extended between 2018 to 2020. Bargaining occurred over
728 days of bargaining, which included 167 days of direct meetings between employer and employee
bargaining representatives. 12 separate disputes were lodged.
The employer assessed that during bargaining, productivity was impacted between 22-34% in any given 24-
hour period, losing between 16 and 50 hours of productive work each day, and collectively losing over
60,000 individual working hours to protected and unprotected industrial action.
Option 2 - Increase the capacity of the Fair Work Commission
to help workers and businesses reach agreements (preferred)
This option increases the Fair Work Commission's capability to assist bargaining parties to progress bargaining
to finality through independent third-party arbitration. The ability for parties to engage the Fair Work
Commission to assist bargaining will be a significant benefit for both employers and employees.
Under this option, a new intractable bargaining declaration and intractable bargaining workplace
determination will replace serious breach declarations and bargaining related workplace determinations in the
Fair Work Act. These improved bargaining tools will be available in the single and multi-employer bargaining
streams under the Fair Work Act (excluding the Co-operative Workplaces Stream and greenfields agreements).
This option permits a bargaining representative for a proposed agreement to apply to the Fair Work
Commission for an intractable bargaining declaration. Whether or not to issue an intractable bargaining
declaration is a discretionary decision for the Fair Work Commission. However, in order to issue an intractable
bargaining declaration the Fair Work Commission must be satisfied that:
• It has already attempted to assist the parties deal with their dispute under section 240 of the Act
(which deals with bargaining disputes);
• There is no reasonable prospect of agreement being reached if a declaration is not made; and
• It is reasonable in the circumstances to make the declaration (considering the views of all bargaining
representatives).
If the Fair Work Commission issues a declaration, the Commission may order the parties to undergo a further
period of negotiation. The period for these mandatory negotiations is to be determined by the Fair Work
Commission and can subsequently be extended if the Fair Work Commission considers it appropriate to
extend.
After the declaration is made, and after any post-declaration negotiation period has elapsed (if any), the Fair
Work Commission must then make an intractable bargaining workplace determination. An intractable
bargaining workplace determination must be made by the Fair Work Commission as quickly as possible. An
intractable bargaining workplace determination must include terms agreed between the parties, a coverage
term, core terms (e.g. nominal expiry date), mandatory terms (e.g. dispute resolution term) and terms dealing
with the matters that remain at issue between the parties.
Impact on employers
This measure will have positive and negative effects on employers.
Improved access to arbitration is anticipated to have positive effects for business in reducing the length of
time it takes to bargain, either by having a viable option to bring protracted or deadlocked bargaining to a
84
While this is a hypothetical scenario, the figures are based on a real-life case
Fair Work Legislation 54 Senate
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Regulation Impact Statement
conclusion and/or influencing the behaviour of bargaining representatives to bargain in a reasonable and
efficient manner.
Improved access to arbitration will have negative impacts in that third-party arbitration can be lengthy and
costly with uncertainty and lack of control over outcomes.
Quantifying the impact of this measure, both positive and negative, is complex because:
• If and when arbitration occurs under the measure remains within the parties' power and will be
affected by behaviour and preferences of individual bargaining representatives;
• The length of time and cost involved in third-party arbitration depends upon the process used by the
individual Fair Work Commission Member as well as the behaviour of the parties in that arbitration;
• The effect on bargaining behaviour of bargaining representatives and the reduction in surface and
unreasonable bargaining is difficult to predict and measure; and
• The outcome of arbitration is at the discretion of the Members of the Fair Work Commission.
Senate 55 Fair Work Legislation
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Regulation Impact Statement
To estimate the potential arbitrated wage outcomes, the Department has analysed the wage outcomes
awarded by the Fair Work Commission in its workplace determination decisions since commencement of the
Fair Work Act. The results of that analysis are contained in the following table.
Case Employee Employer claim % FWC workplace Wage Price Index Average
claim % determination % for the relevant bargained EA
year increases for
the relevant
year
Case 1 3% 3% 3% 2.8% 3.3%
Case 2 On On On Commencement: 2.1% 2.6%
Commenceme Commencement:
4.5%
nt:
Lower paid
12 months after:
11-27% employees - 3%
2.5%85
Progressing: Higher paid - 12-
3.5% 13%
Progressing
3% yearly
Case 3 On On On commencement: 1.8% 2.8%
Commenceme commencement:
4%
nt:
1.5%
After 12 months:
12%
Progressing every
2.5%
Progressing 12 months:
every 12 Further 12 months:
1.5%
months:
2%
4%
Case 4 On On On Commencement: 2.3% 2.7%
Commenceme Commencement:
4%
nt:
2%
After 12 months
12.5%86
Every 12 months
3%
Every 12 for 2 years:
months:
2%
2.5%
Case 5 2.5% 2.5% 2.5%87 1.8% 2.8%
The limited data available supports the view that the FWC does not, and therefore is unlikely to, award
significant wage increases over those reached through normal enterprise bargaining. Arbitrated increases over
the life of these enterprise agreements largely mirror enterprise agreement average increases in the relevant
year. What drives some averages higher than the average enterprise agreement is the initial increases
85
This decision included bringing employee wages up to the standard of a 25% increase on the 2004
agreement, which impacted all employees differently (e.g. - if an employee was receiving $27 an hour and a
25% increase on the 2004 agreement was 30$ an hour, their pay would rise to that $30).
86
This was interpreted as 'back pay' increases that had been missed between 2014-2018.
87
This number was reached during arbitration between the parties, after concessions were made on both
sides.
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awarded by the Fair Work Commission at the start date of the determination. In cases where this occurred, the
Fair Work Commission was generally acting to immediately increase wages where employees had not had a
wage rise for a significant time while protracted bargaining was ongoing. Because of this, and the context in
which the Fair Work Commission was arbitrating these disputes, these one-off increases are less significant.
Year-on-year increases are much more reflective of the average anticipated arbitrated wages outcomes, and
are below the percentage increases that businesses may be concerned about.
Acknowledging that the Fair Work Commission has awarded an above-average wage increase to balance lower
levels of renumeration in the past, increased access to arbitration could raise concern about a possible
inflationary effect on wages. There are two reasons why this is not anticipated to be the case.
Firstly, it is the Department's view that bringing business and unions together at the enterprise bargaining
table, with productivity gains as a focal point, is the only way we can increase both profits and wages without
inflationary pressure. Secondly, the Department understands that bargaining parties tend to mediate their
own wage claims before and during arbitration proceedings. In BP Refinery (Kwinana) Pty Ltd v AWU,88 both
employee and employer wage claims were brought closer together before the FWC ordered a workplace
determination. The AWU's initial claims were a 12 per cent increase on commencement and a 4 per cent
increase progressing every 12 months. BP Refinery's initial claims were a 1.5 per cent increase on
commencement and a 1.5 per cent increase progressing every twelve months. Eventually, the FWC ordered a 4
per cent increase on commencement, a 2.5 per cent increase after 12 months and a 2 per cent increase after a
further 12 months.
Measuring the impact of mandatory arbitration on behaviour does not have an easy comparator from which to
draw inferences. In the analysis above of existing workplace determinations, at least 2 instances of arbitration
lead to the bargaining parties progressing their level of agreement, including on wages, during the arbitration
process. This demonstrates that mandatory arbitration can, at the least, have a positive impact on bargaining
behaviour and encourage parties to reach agreed outcomes.
Department analysis using the Workplace Agreements Database of 15,000 agreements made between 1
January 2017 and 30 June 2022 shows that the median bargaining times are:
Small businesses: 62 days (approx. 2 months)
Medium businesses: 150 days (approximately 4.5 months)
Large businesses: 225 days (approximately 7 months)This measure is designed as a remedy to
protracted bargaining. For current purposes, the Department will assume that bargaining for longer
than the median for a large business is 'protracted' bargaining.
For the calculation of benefits to business, the Department estimates that without intervention, protracted
bargaining will take an additional 6 months of bargaining time. If bargaining continued for this additional
period instead of going to arbitration the cost to business would be:
Number of days x hours per day x labour cost per hour
180 x 4.6 x $79.63 = $65,934 per business.
If the agreement is arbitrated instead of requiring additional bargaining time the Department assumes that the
Fair Work Commission will finalise bargaining-related arbitration consistent with its publicly reported
performance measures. According to those measures, the Commission aims to finalise 50% of cases within 8
weeks of filing. The Department assumes that business will spend 2 hours per day managing the arbitration
process. Assuming an 8-week process, the cost of this to a business is:
Number of days x hours per day x labour cost per hour
56 x 2 x $79.63 = $8,919
The benefit per business in relation to the reduction in cost of bargaining time would be $57,015.
88
[2020] FWCFB 2693.
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The potential negative impacts of this measure on business is outweighed by a high threshold to access
arbitration. This high threshold will discourage a bargaining party from using arbitration excessively or
vexatiously and ensures that the provisions are not gamed. Conversely, the ability of a bargaining
representative to apply for arbitration is anticipated to focus the bargaining representatives' to reasonably and
efficiently engaging in good faith bargaining to reach agreement on terms and conditions of employment.
The Department estimates that it will take approximately 15 minutes for an employer to read a factsheet at
the Fair Work Commission website on these provisions at a cost of approximately $20 (25% of $79.63).
While there will be some regulatory cost to implement this proposal, the policy has a net benefit given
increased access to arbitration is intended to reduce the level of disputation, industrial action, and the time
taken to bargain. The measure will also provide an incentive for the parties to bargain reasonably. Many
employers are opposed to third party arbitration of enterprise agreement negotiations. However, the Fair
Work Commission is an expert, independent Tribunal that has appropriate safeguards in place in relation to
arbitration proceedings, such as administrative law principles of natural justice (i.e. the requirement to provide
a fair hearing and allow parties an opportunity to argue their position) and relevant appeal mechanisms.
Impact on employees
As the Department's analysis of Fair Work Commission workplace determination decisions shows that
protracted bargaining delays wage increases and other benefits to employees. It can also do great damage to
relationships at the firm level. Arbitration allows impasses to be resolved, while considering the views of all
parties to achieve a fair outcome sooner.
Case Study - Protracted bargaining cont. ...
Rather than bargaining for 728 days, bargaining proceeded for 225 days (being the median time spent in
bargaining for a large employer). At this time, the employer sought and was granted an intractable
bargaining declaration by the Fair Work Commission, which took 56 days. The Fair Work Commission
ordered the parties to engage in further facilitated discussions before the Fair Work Commission for
another 21 days. An agreement was not able to be reached in this time. The Fair Work Commission
arbitrated and issued an intractable bargaining workplace determination - which took a further 56 days.
On the hypothetical, the time between bargaining commencing and finalising was:
225 + 56 + 21 + 56 = 358 days
Compared with 728 bargaining days in the status quo scenario, this is a saving of 370 bargaining days. The
savings to the employer in dollar terms is:
370 days x 4.6 hours/day x $79.63 = $135,530
Assuming that industrial action would otherwise have occurred in these 370 bargaining days, the employer
has gained additional productivity of between 5920 and 18,500 hours of productive work.
Impact on Fair Work Commission
This measure will have an impact on the workload of the Fair Work Commission. It is not possible to assess the
precise impact on the Fair Work Commission's workload for the reasons mentioned above.
It is reasonable to assume that the measure will increase the number of applications made to the Fair Work
Commission each year. Because it is a pre-requisite for making an intractable bargaining declaration, referring
to the number of applications for the Fair Work Commission to deal with a bargaining dispute under section
240 of the Fair Work Act is a reasonable comparator to estimate the impact on workload.
In its 2020-2021 Annual Report, the Fair Work Commission received 121 applications under section 240 of the
Fair Work Act. If each of these applications led to an application for an intractable bargaining declaration that
would mean an additional 121 applications to the Fair work Commission. In the same period, the Fair Work
Commission received a total of 28,957 applications to deal with matters under the Fair Work Act. Using these
assumptions, this measure would lead to an increased workload of less than 0.5% of the Fair Work
Commission's usual total workload.
Fair Work Legislation 58 Senate
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Option 3 - Increase the capacity of the Fair Work Commission
to help workers and businesses reach agreements, applying
to all streams
This option still uses mandatory arbitration like option 1 but stipulates the method of arbitration and sets
boundaries to the outcomes that the Fair Work Commission can order.
The impact in terms of additional costs on employers under this option are substantially the same as those
associated with option 2. The variable cost in this option would be the length of time stipulated for the Fair
Work Commission to complete arbitration. Assuming the Fair Work Commission were required to complete
arbitration of intractable bargaining workplace determinations within 4 weeks of commencing arbitration, the
benefit to employers would be calculated, using the same assumptions as above, as follows:
28 x 2 x $79.63 = $4,459
The benefits per business in relation to the reduction in the cost of bargaining time would be $65,934-$4,459 =
$61,475.
In the Department's view, the minimal increased cost to employers would be outweighed by the negative
impacts of procedural limitations on the Fair Work Commission's ability to determine the most efficient
manner and appropriate time required to arbitrate the individual dispute before it. The Fair Work
Commission's performance measures are modest (50 per cent of cases finalised within 8 weeks) and the Fair
Work Commission's history of meeting its performance targets should provide comfort to users.
Similarly, as the Department's analysis above shows, the risk of the Fair Work Commission awarding significant
wage increases out of step with prevailing economic conditions is low. Additional regulation in this respect is
unnecessary and is more likely to lead to gaming of the system and have a negative, unquantifiable effect on
the behaviour of bargaining representatives.
Senate 59 Fair Work Legislation
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Regulation Impact Statement
5. Who will you consult and
how will you consult them?
Overview
The Minister for Workplace Relations, the Hon Tony Burke MP, chaired a Meeting of Ministers on 5 July 2022
to discuss his intention to amend the Fair Work Act 2009 to reflect the Government's election commitments.
The Minister also chaired a meeting with key union and business representatives, the National Workplace
Relations Consultative Committee (NWRCC) on 19 July 2022, where the same topic was discussed.
In August, September and October 2022, the Department consulted widely on reforms to the enterprising
bargaining provisions of the Fair Work Act 2009, in the context of the Government's election commitments to
get wages moving, improve job security, and support gender equity, and in the lead up and response to the
Jobs and Skills Summit.
Possible reform options were canvassed with key stakeholders in bilateral and group forums led by the
Department over this time and, as views were shared, the reforms were developed and enhanced. Where
agreement was present between stakeholders, this strongly influenced final proposals for reform. Where
agreement was not possible, views of the stakeholders were taken into account in the final design of the
options to achieve balanced and effective outcomes. An example of this was in relation to the transition time
for sunsetting Zombie Agreements, which was reconsidered following consultations with stakeholders.
The majority of stakeholders were consulted on more than one occasion, through informal and formal
consultation methods, including confidential written submission, bilateral meetings and small group forums. In
all, more than 50 consultation meetings were conducted over this period. Consultations were conducted with
union, business and industry representatives, state and territory officials, individual businesses, academics, the
National Women's Alliances, and the Women's Economic Equality Taskforce.
The Department considers that confidential consultation is a highly useful means of eliciting frank and honest
feedback on policy proposals. Workplace relations policy is highly contested, and media commentary is often
salacious and counterproductive, resulting in further conflict and polarisation. Out of respect for the
Department's commitment to stakeholders of confidentiality, and so as not to jeopardise future confidential
discussions, stakeholder views and proposals provided in confidence cannot be disclosed as part of this
analysis.
Following the consultation process, the Minister for Workplace Relations held a further Meeting of Ministers
on 20 October 2022 to discuss the detail of the reforms covered by the Bill, including the reforms relating to
enterprise bargaining. The Department also led a briefing on the draft Bill for state and territory officials on 21
October 2022, and a similar meeting on 20 October 2022 with the Council on Industrial Legislation, which is a
sub-committee of the NWRCC.
Final amendments were made to the Bill in response to these consultations on 20 and 21 October 2022, prior
to the Bill being finalised for introduction to the Parliament.
Prior consultation
Notwithstanding the comprehensive consultation the Department undertook on these specific measures,
several measures addressed in this RIS were subject to consultation in 2020 (see the Enterprise Bargaining
Reform Regulation Impact Statement (OBPR ID 20 42818)). Specifically, the Department consulted on reforms
to the agreement approval process, unilateral termination of agreements and sunsetting zombie agreements.
Stakeholder views were thoroughly ventilated during consultation for these reforms, and these were taken
into account to inform Departmental policy work for this reform process.
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6. What is the best option from
those you have considered?
The Government has worked closely with key workplace relations stakeholders to develop sensible and
reasonable reforms to improve access to and uptake of enterprise bargaining. In bilateral consultations and
during the Jobs and Skills Summit, there was a commitment to implementing reasonable solutions to address
the current issues identified in agreement making and reversing its trending decline. Consensus was reached
on some key issues to progress reforms that would make the bargaining system simple, flexible and fair and
increase access for groups and sectors that have not had strong bargaining coverage or outcomes.
This regulatory impact statement considers a number of options to improve enterprise bargaining. The
options, at a high-level, seek to amend legislation to simplify bargaining, close loopholes in the bargaining
framework and provide additional resources and capability to the Fair Work Commission to facilitate greater
access to bargaining (especially for the low paid and women) and increased capacity to arbitrate intractable
disputes.
Unilateral termination of agreements
Option 2 clarifies the circumstances in which the Fair Work Commission may agree to unilateral applications to
terminate an agreement and also prohibits the agreement termination process from being used as an unfair
bargaining tactic, while ensuring that legitimate applications can continue to be made. Employers and
employees would continue to be able to terminate enterprise agreements by consent at any time.
The Department considers this the best option available, since it provides the Fair Work Commission with clear
criteria with which to consider s.225 applications, allowing them to determine outcomes based on the facts of
the matter. The Department considers there is a clear case for Government to intervene in order to close the
loophole created by Aurizon, and to prevent unfair impacts on employees. The overall impact for this is option
is minor, but it will create meaningful benefits for the bargaining system overall, as employers will no longer be
able to threaten to apply to terminate their enterprise agreement to negatively impact the bargaining position
of employees.
Zombie Agreements
Option 2 proposes to automatically sunset agreement-related transitional instruments made prior to the
commencement of the Fair Work Act and during the 'bridging period' (1 July-31 December 2009). This issue
has been subject to significant public debate, since it has ongoing, deleterious impacts on employees and
business competition. After considering feedback from stakeholders, the Department considers there is a
strong case for government action and that the proposed measures are reasonable.
A variation of option 3 was contained in the Fair Work Amendment (Supporting Australia's Jobs and Economic
Recovery) Bill 2021, which ultimately did not pass Parliament. Option 2 improves upon this previous proposal
by ensuring any party to an agreement can apply to preserve a sunsetting agreement for up to four years in
specified circumstances. The Department considers this to be an appropriate safeguard which will minimise
the impacts of the measure on businesses and employees.
Improving access to single and multi-
employer agreements
Option 2 provides a suite of proposals to improve access to single and multi-employer agreement-making via
the single-enterprise bargaining stream, single-interest bargaining stream, supported bargaining stream and
cooperative workplaces bargaining stream. This option also ensures the process for taking industrial action is
Senate 61 Fair Work Legislation
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Regulation Impact Statement
fair and robust and proposes to amend the Fair Work Act to ensure that positive measures to address gender
and other forms of discrimination are permitted content in enterprise agreements.
It is clear the bargaining framework (status quo) is not delivering outcomes for businesses and employees,
especially low-paid employees. The suite of amendments in Option 2 is designed to address the decline in
bargaining, low wage growth, and lack of access to bargaining. The Department considers Option 2 preferrable
to Option 3 because it specifically targets these issues.
Remove unnecessary complexity and make
the Better Off Overall Test simple, flexible and
fair
Option 2 simplifies the enterprise agreement approval process and makes amendments to the Fair Work Act to
simplify the operation of the Better-Off-Overall-Test.
Consensus was reached at the Jobs and Skills Summit that the existing genuine agreement and better off
overall requirements are onerous, complex and unnecessarily prescriptive, and that government action is
needed. The improvements in Option 2 remove the prescriptive elements of both the genuine agreement and
better off overall requirements while maintaining appropriate discretion in the independent Tribunal to ensure
fairness in agreements. The Department considers Option 2 is preferrable to Option 3 because Option 3 does
not adequately address the complexity and prescription that is at the core of the problem being addressed.
Increase the capacity of the Fair Work
Commission to help workers and businesses
reach agreements
Option 2 would amend the Fair Work Act to increase the capacity of the Fair Work Commission to deal with
surface bargaining and intractable bargaining disputes. Currently, the Fair Work Commission can only arbitrate
a bargaining dispute with the agreement of all bargaining parties or in certain very limited circumstances.
Under this option, the proposed changes would apply to the Supported Bargaining Stream, Single Interest
Bargaining Stream and Single Enterprise Bargaining Stream but not the Co-Operative Workplaces Stream (use
of which is entirely voluntary).
The Department considers this option is preferable. Where bargaining breaks down and the parties reach an
impasse, the options to break through the impasse and progress to agreement are limited. While the Fair
Work Commission can assist parties with alternative dispute resolution options, there will always be cases
where alternative dispute resolution does not reach an outcome. Industrial action is another option open to
parties but more often than not inflames disputes and can lead to a breakdown in ongoing relationships
between workers and their employer. Option 2 provides parties with an additional option to approach the
expert, independent Tribunal to assist progress bargaining and, in some cases, arbitrate bargaining outcomes
to bring bargaining to a conclusion. Any incentive to 'game' the system and excessively refer disputes to the
Fair Work Commission for arbitration, or concoct scenarios where arbitration becomes likely, are minimised by
establishing a high threshold before the Fair Work Commission can authorise arbitration. Additionally, the Fair
Work Commission's powers to assist voluntary resolution are further engrained in the framework giving the
Fair Work Commission the maximum discretion to assist parties make agreements.
Fair Work Legislation 62 Senate
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7. How will you implement and
evaluate your chosen option?
Implementation
All measures will be implemented through legislation and each measure will come into effect as scheduled in
the Bill. The 'zombie' agreements measure will provide a sunset period to allow businesses and workers to
make appropriate arrangements. To effectively implement the preferred option, registered organisations,
employers, and employees will require sufficient time to comprehend amendments to the bargaining system.
As part of this implementation process, employees and employers can seek information from the Fair Work
Commission, the Fair Work Ombudsman, and the Department.
All workplace relations reforms are vulnerable to extraneous macroeconomic factors affecting the usage or
take-up of new provisions. The Department highlighted how a changing labour market and business structures
affected the way businesses used the Fair Work Act, and the deleterious effects this had on collective
bargaining. The Department mitigates this risk by engaging in continual monitoring of the workplace relations
framework and providing regular advice to Government.
A major risk to the implementation of these measures is parties not engaging with the enterprise bargaining
forms, especially the new bargaining streams. This risk will be mitigated by the Fair Work Commission
operationalising the reforms and providing regular advice. This will include:
• The Fair Work Commission's existing hotline that provides information to employers and employees
• Updated explanatory information on their website
• Updated online benchbooks for practitioners
In recent times, the Fair Work Commission has developed an informal practice of convening a full five-person
Full Bench to consider major legal issues or provide guidance on how new laws operate. 89 In convening these
expanded Full Benches, the Fair Work Commission will often call for submissions from major stakeholders (e.g.
the ACTU, ACCI and Ai Group).
In addition to business-as-usual activity which accompanies the introduction of any new workplace laws, the
Department has planned a communication strategy to aid in implementing these measures. The Department
will:
• Develop fact sheets and 'questions and answers' material for the Departmental website to explain the
key law changes and address common misconceptions.
• Link Departmental web communications to Fair Work Ombudsman information and education
materials.
• Hold bilateral consultations and forums with key stakeholders.
• Develop illustrative case studies.
The Department recognises the risk that despite its comprehensive consultation and communication, some of
these measures may not align with the views of some stakeholders. This will be mitigated by ensuring the
Department clearly articulating the substance of the changes, and why the Government was required to
legislate to resolve known issues with the bargaining framework.
89
Application by Sharon Bowker [2014] FWCFB 9227.
Senate 63 Fair Work Legislation
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Regulation Impact Statement
Monitoring and evaluation
The Department engages in continual monitoring of the workplace relations system, which involves a range of
qualitative and quantitative data sources, including from data it develops or from the Fair Work Commission.
The Workplace Agreements Database managed by the Department contains wages information relating to all
public and private federal enterprise agreements, such as wage increases included in agreements. The
quarterly and yearly reports produced by the Fair Work Commission will indicate the impact of the policy once
it has been implemented.
Data that is available and will be monitored by the Department includes the:
• number of new agreements made in the amended multi-employer streams
• number of agreements in any stream made by small businesses
• time taken to approve an enterprise agreement
• number of Better-Off-Overall-Test reconsideration applications
• number of applications for unilateral termination of an agreement
• number of applications to extend the sunset date of a 'zombie' agreement
• number of intractable bargaining declarations and workplace determinations made by the Fair Work
Commission
• average wage increases awarded for agreements in workplace determinations.
The Fair Work Commission provides its reasons for approval and dismissal of agreements, which will provide
insight on how the amended provisions are understood by parties and interpreted by the Fair Work
Commission. The use of technological solutions will also provide more data to assess performance and allow
the Fair Work Commission to assist parties as appropriate.
The Department will also continue to engage in stakeholder consultation with employer and employee groups
to gauge the impact of the reform. In particular, consultation will be undertaken through the regular meetings
of the National Workplace Relations Consultative Council (NWRCC), which is a forum for employer and
employee representatives to consult on workplace relations and labour market matters of national concern
that is chaired by the Minister for Employment and Workplace Relations. Given the close ongoing monitoring
and evaluation of the implementation of workplace relations legislation and policies, no formal evaluation of
these measures is planned.
Fair Work Legislation 64 Senate
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Regulation Impact Statement
Appendix A: Current bargaining streams
Senate 65 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
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