There has been extensive media coverage about recent changes by the federal Labor Government to workplace legislation, described as the Secure Jobs, Better Pay amendments.
The government’s proposed legislation was complicated and there were many amendments to the original Bill, moved both by the Government itself and by crossbench senators. This article reflects our understanding of the changes as we go to press.
Most of the changes will not come into effect until the middle of next year with some having an even longer timeframe for implementation. However, we can expect that employers will bring their practices into line with some of the new requirements before then, although the bargaining changes will not be available until the legislation comes into effect in late June.
The new Act will ban fixed term contracts that have a duration of more than two years or, if an employee is extended on rolled over contracts to do the same work, the total duration of one or more contracts exceeds two years. The new provisions will come into effect from the end of 2023 and may be reviewed further before then.
There are exemptions to the new fixed term rules. These include an employee replacing another employee on leave and an employee whose job is funded by government in circumstances where it is unlikely the government funding will extend for more than two years.
Where an employee is employed on a fixed term contract contrary to the new rules, the fixed term contract will not terminate on the specified end date and the employee will continue to be employed and have the same rights as other ongoing employees.
It is not yet clear how the new provisions will apply to employees (such as teacher aides) who have a mix of permanent and temporary hours. However, it does seem clear that teachers on fixed term contracts where the reason for their temporary status is unclear, will benefit. Under existing provisions in enterprise agreements, even if an employee is employed as a temporary in breach of the relevant enterprise agreement or award, in some cases it can be difficult to force an employer to appoint the employee permanently. The amendments should make that easier.
Right to request flexible work
Employees have a right to request flexible work arrangements in certain circumstances (for example to care for a child) and employers can only refuse the request on reasonable business grounds. However, this right can be difficult to enforce in many workplaces. Employees will now have the right to challenge a refusal by the employer or a failure by an employer to respond to the request or give reasons. If the employee refers a dispute to the Fair Work Commission, the Commission can conduct a conciliation of both parties and even make an order to force the employer to take action to resolve the problem. This will be a significant improvement on the rights of members in many independent schools under current enterprise agreement clauses.
Arbitration in bargaining disputes
There will be a new right to seek arbitration by the Fair Work Commission if bargaining has broken down for a new enterprise agreement. Parties will be able to approach the Commission if the bargaining has become intractable and ask the Commission to rule on outstanding matters if it is at least nine months since the previous agreement expired or when bargaining commenced. This new right will be available for agreements applying to single employers or in ‘single interest’ bargaining, such as the current bargaining with Catholic systemic schools.
Single interest bargaining
It will become easier for employees to access single interest bargaining. A big change is that unions will for the first time be able to initiate bargaining with employers who have a common interest, by obtaining a ‘single interest’ declaration from the Fair Work Commission. This can be done by agreement with employers or by demonstrating the support of employees in the relevant workplaces.
If a declaration is obtained, it improves the bargaining rights of the employees, as compared to those under current multi-enterprise bargaining. Existing multi-enterprise agreements applying to schools represented by the Association of Independent Schools expire in January 2025 so the new rules will be in place for the next round of bargaining.
The union understands that new ‘supported bargaining’ provisions may apply to teachers in early learning centres. There have been some initial discussions with other unions and employers as to how the new provisions might work, but there is still much work to do. Clearly the focus will be on those workplaces where there is not a current enterprise agreement, or the agreement has expired, so that wages can be lifted for as many employees as possible above modern award rates. We will keep members informed about these discussions.
The details and implementation of the new legislation will become clearer in coming months. In the meantime, the Labor Government must be congratulated for their achievement in enacting these far-reaching changes.