Workplace relations update | 31 March 2023

Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023
On March 29, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 was introduced into the Federal Parliament.

The legislation proposes to:

• insert a right to superannuation in the National Employment Standards
• clarify that the Fair Work Act applies to temporary migrant workers
• provide stronger access to unpaid parental leave
• clarify the operation of workplace determination
• amend the process for making deductions from employees’ pay
• amend the coal industry long service leave scheme

While the changes are to some degree less contentious than other workplace relations policies of the federal government, ACCI will be closely engaging with the legislation both in advocacy with parliamentarians and any future committee inquiry.

Members are encouraged to contact ACCI if they have any specific concerns about the legislation. The proposed changes to unpaid parental leave are particularly noteworthy and members may be aware of problems that they could cause in their respective industries.

Annual Wage Review 2022-23 
On March 31, ACCI submitted its initial submission in the Annual Wage Review 2022-23.  

While the ACTU and federal government are calling for significant increases to minimum wages and modern award wages, ACCI is contending that the Fair Work Commission should take a cautious approach to wage increases, particularly in light of the potential to worsen the inflationary environment and businesses’ ongoing incapacity to absorb large labour cost increases.

ACCI thanks members who recently participated in meetings to discuss and determine ACCI’s proposed position in the review.

Consultation on Second Tranche of Workplace Relations Changes
On March 29, ACCI participated in consultations with the Department of Employment and Workplace Relations regarding the second tranche of workplace relations changes which will be proposed in the latter half of 2023.  

The proposed measures include:

• redefining casual employment
• implementing a “same job, same pay” policy for labour hire
• criminalising wage theft
• extending the powers of the Fair Work Commission to “employee-like” workers
• giving workers the right to challenge unfair contract terms
• introducing minimum standards for the road transport industry
• strengthening anti-discrimination laws
• introducing a national framework for labour hire regulation
• amending the Fair Entitlements Guarantee
• making further amendments to enterprise bargaining
• amending registered organisations amalgamations provisions

ACCI is currently seeking feedback from members on the proposals which are explored further on the Department’s website.

Cost Models for Commonwealth Anti-Discrimination Laws
In February 2023, the Attorney-General’s Department released a consultation paper titled: Review into an appropriate cost model for Commonwealth anti-discrimination laws. 

ACCI is in the process of preparing a written submission in response to the paper, which is due on April 14.

Members are encouraged to contact ACCI if they have views on which proposed cost model outlined in the consultation paper is most appropriate.

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

ACCI has submitted its response to the report, which argues against the removal of the small business exemption and encourages caution with respect to other recommendations. 

The federal government has notified ACCI that it intends to offer an invitation to participate future roundtable discussions regarding the future of the small business exemption. ACCI will continue to closely engage with this issue and encourages ongoing member input.

Draft Statement of Principles
On March 3, 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 lodged its submission in response to the draft statement of principles on March 30, suggesting various amendments to improve its efficacy in guiding employers in the bargaining process.

Carer Leave Inquiry Position Paper 

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. on February 28.

On Tuesday 28 March 2023, ACCI lodged its submission in response to the Position Paper, supporting the Productivity Commission’s findings 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”.

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.

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 24 March 2023. 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.