Workplace relations update | 24 March 2023

Amendments to Fair Work Act 
ACCI, as a member of the Committee on Industrial Legislation (COIL), has examined a draft of the first tranche of proposed amendments to the Fair Work Act for 2023, under cover of a Deed of Confidentiality, and provided feedback to the Government.

The legislation is expected to be introduced into the Federal Parliament next week. 

The changes will include:

• inserting a right to superannuation in the National Employment Standards;
• reforming the four-yearly review of superannuation default fund provisions;
• clarifying that the Fair Work Act applies to temporary migrant workers;
• providing stronger access to unpaid parental leave by mirroring recent changes to the paid parental leave scheme, including by converting all leave to flexible leave days;
• clarifying that when a workplace determination comes into effect, the enterprise agreement will no longer operate;
• amending the process for making deductions to an employee’s pay by allowing an employee’s initial written deduction authorisation to specify that the amount of a deduction can vary; and
• amending the coal long service leave scheme to ensure that casual employees are treated no less favourably than permanent employees for accrual and reporting.

Right to Disconnect
On 20 March 2023, Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 into the Federal Parliament on behalf of the Greens.

The Bill proposes to insert a “right to disconnect” into the National Employment Standards which would prevent employers from contacting employees outside work hours and ensure employees are not required to monitor, read or respond to email, telephone calls or any other kinds of communication from an employer outside their working hours.

Although the legislation is only a private member’s bill, ACCI will engage with its contents and any future inquiry because of the substantial political power wielded by the Greens in the Senate. This policy priority of the Greens in industrial relations could be a point of negotiation in this year’s forthcoming tranches of amendments to the Fair Work Act 2009.

ACCI is naturally concerned about the proposal to introduce a “right to disconnect” because of its potential impact on legitimate employer needs, including management action and the arrangement of shifts. Members are encouraged to provide ACCI with their concerns and industry-specific examples of problems that may arise are particularly welcome to strengthen our advocacy.

Privacy Act Review Report
On 16 February 2023, the Attorney-General released the report of the Attorney-General’s Department’s Privacy Act Review.

ACCI is particularly concerned about the proposal to remove the small business exemption. The workplace relations team is also examining proposals relating to the employee records exemption, direct right of action and statutory tort.

ACCI has prepared its submission across a number of teams and distributed it to members. We welcome any feedback by COB Tuesday 28th March.

Draft Statement of Principles
On Friday 3 March 2023, the President of the Fair Work Commission published a draft of the statement of principles which will guide its decisions as to whether an enterprise agreement has been “genuinely agreed” to by the employees it intends to cover.

ACCI is currently preparing our submission in response and are seeking member input. ACCI’s preliminary views are that the language used in the draft statement of principles is generally clear and understandable, as recommended by ACCI; however, there are aspects that could be improved. Otherwise, the draft statement of principles appropriately seem to cover all the requirements on employers to ensure that there was genuine agreement.

Carer Leave Inquiry Position Paper
On Friday 28 February 2023, the Productivity Commission published its Position Paper following its inquiry into the impact of inserting an unpaid carer’s leave entitlement into the National Employment Standards. 

The Productivity Commission agreed with many of the main contentions in ACCI’s submission, ultimately finding that “overall there is not a strong case for amending the National Employment Standards to allow for an entitlement to 3-12 months of unpaid leave” for carers and that “an extended unpaid carer leave entitlement would impose costs on employers”.

ACCI is preparing its submission in response to the Position Paper, which will express strong support for many of the findings, and welcomes any member input. 

Member Guides on Changes to Fair Work Act
ACCI has released its guide to the non-bargaining changes to the Fair Work Act following the passage of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 last November. 

It is accessible to members here. Please contact us if you would like it co-branded.

ACCI has well advanced a second guide relating to changes to multi-employer and enterprise bargaining under the Fair Work Act. A draft will be circulated to Committee Members for feedback shortly. 

Zombie Agreements
The Fair Work Commission recently published a list of possible zombie agreements which will be sunsetted on December 7, 2023.

Employers currently covered by agreements that were made before 2010 who wish the terms of the agreement to continue to apply after December 23 will need to apply to the Fair Work Commission for an extension. Otherwise, the agreement will automatically terminate on 7 December 2023 and the relevant modern award is likely to apply.

By June 6, all employers covered by agreements that were made before 2010 must notify covered employees in writing that the agreement will be terminated. The Fair Work Commission has provided further guidance.

Registered Organisations
The functions of the Registered Organisation Commission have now been transferred to the General Manager of the Fair Work Commission. Accordingly, all ongoing investigations, inquiries and litigation will transfer to the General Manager. The Fair Work Commission will now be responsible for enforcing the obligations of registered organisations.

ACCI is a member of the Registered Organisations Commission Transition Advisory Committee that is convened by the Fair Work Commission and is supporting them in the transition of these responsibilities.

The Committee is next meeting on March 24. ACCI will be in contact with members who are registered organisations shortly to obtain their input. Members are welcome to reach out prior in the meantime.

Sexual Harassment Working Group
ACCI is now a member of the Fair Work Commission’s Sexual Harassment Working Group and providing assistance in the implementation of the new sexual harassment laws and jurisdiction.

The Fair Work Commission has updated their online learning module on sexual harassment to reflect these changes in the law. 

The Fair Work Commission has also published forms which will be used for applications and responses in sexual harassment matters, will be reviewing its benchbook, will provide training for Commission members and staff, and provide other services.

Members with any feedback on the implementation of the new jurisdiction or the updated learning module should contact ACCI so that their input can be relayed through our involvement in the Sexual Harassment Working Group.