Some significant changes to the law, which will have implications for workplace relations, are imminent. These changes relate to:

• protected industrial action;
• zombie agreements;
• flexible work arrangements and unpaid parental leave disputes; and
• superannuation guarantee entitlements.

Protected industrial action

Under the Fair Work Act 2009 (Cth) (FW Act), employees have the right to take industrial action (i.e. go on strike) during enterprise bargaining; however, the industrial action taken must be protected.

From 6 June 2023, before protected industrial action can be taken there will be a new requirement for all bargaining representatives to attend a compulsory conference to be convened by the Fair Work Commission (FWC). The conference will take place during the ballot period but before any protected industrial action can take place.

At the conference, a member of the FWC can:

• mediate;
• conciliate;
• make a recommendation; and
• express an opinion.

The purpose of the conference is to try to get parties to reach an agreement on the issues that are preventing the enterprise agreement from being agreed to.

The changes give the FWC a more hands-on role in helping parties to reach an agreement, which may be helpful in situations where bargaining representatives simply cannot agree on a particular issue and a neutral third party may be needed to provide both parties with a fresh perspective on the issue.

The 6 June 2023 is also the date a raft of changes around bargaining and bargaining disputes come into effect.

Zombie agreements

Zombie agreements are agreements that were made prior to the FW Act coming into effect on 1 January 2010. Many zombie agreements no longer operate, but some still continue to apply to certain groups of employees.

In an attempt to phase out the continued operation of zombie agreements, the Federal Government made changes to the FW Act that will ensure these agreements will automatically terminate on 7 December 2023, unless an application is made to the FWC to extend operation.

Employers must notify any employee who is still covered by a zombie agreement about its upcoming termination. Notification must be done before 7 June 2023. A failure to give written notice to employees will expose employers to financial penalties.

The FWC has helpfully compiled a list of possible zombie agreements that continue to apply. You can find the list on its website.

Flexible work arrangements and unpaid parental leave disputes

Requests for flexible work arrangements and unpaid parental leave are entitlements contained in the National Employment Standards.

From 6 June 2023, the FWC will be given new powers to deal with any dispute involving a refusal of a request for a flexible work arrangement or an extension of unpaid parental leave. There was previously no avenue for employees to challenge such refusals.

The FWC will be tasked with determining whether an employer had reasonable business grounds to refuse a request for a flexible work arrangement or an extension of unpaid parental leave.

Superannuation guarantee entitlements

From 1 July 2026, employers will be required to pay their employees’ superannuation guarantee (SG) entitlements on the same day they pay salary and wages. Currently, employers are only required to pay their employees’ SG on a quarterly basis. This change was included in the recent 2023–2024 Federal Budget update.

This change will put pressure on employers to ensure they are paying an employee’s SG entitlements on time or risk being penalised by the ATO with the SG charge.