Several significant Industrial Relations changes come into effect 6 June 2023

Next week, a raft of significant changes introduced in the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 come into effect.

We wanted to share a quick update letting you know what is changing.

Multi-Employer Bargaining

A Union or other employer can apply to the Fair Work Commission (FWC) to require the employer to bargain with other employers on a multi-employer or single interest basis and FWC must grant the order if:

• The employers have “clearly identifiable common interests” which may include the nature of their enterprises and terms and conditions of employment in those enterprises, their geographical location, and where they are subject to a common regulatory regime;
• The operations and business activities of the common interest employers are “reasonably comparable”;
• It is not contrary to the public interest for the common interest employers to bargain together; taking into account the broader economic ramifications of including a new employer in a single interest employer authorisation or agreement;
• Employers and unions have had an opportunity to express their views to the FWC on whether the bargaining in the stream should be authorised; and
• At least some of the employees are represented by a union.

Exclusions to Multi- Employer Bargaining or Agreements

• Small business with fewer than 20 employees except by consent;
• Employer with under 50 employees can make case that it is not a common interest employer and/or that its operations and activities are not “reasonably comparable” with those of the other employers to be covered by the agreement;
• Employers and employees undertaking defined types of building and construction work;
• Employer does not consent and there is no majority support among the employees of each employer to bargain for the proposed agreement;
• Good faith bargaining is already occurring in relation to a single-enterprise agreement;
• There is a history of effective bargaining between the parties;
• Less than 9 months have elapsed since the normal expiry of the previous single-enterprise agreement;
• The employees and employers are already covered by a current single-enterprise agreement or employer has agreed in writing to bargain for a replacement single-enterprise agreement.

Changes to role of Fair Work Commission (FWC) in Bargaining Disputes

The FWC will be able to arbitrate bargaining disputes that have gone on for a minimum period of nine months or at least nine months has elapsed since the nominal expiry date of the previous enterprise agreement.

Process for the Making and Approval of Enterprise Agreements Changes

Some of the more prescriptive preapproval requirements for enterprise agreements will be replaced by a single broad requirement that the FWC is satisfied that the agreement has been genuinely agreed.

Enforceable right to request flexible work arrangements and extend unpaid parental leave for a further 12 months

From 6 June 2023, an employee has a new right of appeal to the Fair Work Commission.

Prohibition of pay secrecy clauses

From 7 June 2023 civil penalty provisions apply on new contracts entered into with pay secrecy clauses. Existing contracts are exempt until varied or renewed.

If you’d like a more detailed look at the changes, please click here to see a recording of Special Counsel Tim Greenall’s presentation made earlier this year. To discuss your own situation in further detail, Tim can be contacted on 03 9242 4721 or via tim.greenall@madgwicks.com.au