The Federal Government’s Secure Jobs, Better Pay Bill has been introduced into Parliament.

This legislation will seek to amend the Fair Work Act 2009 (Cth) (FW Act) to implement workplace relations changes, which were the subject of election policy commitments, in key areas including:

• bargaining and collective agreements;
• gender equity;
• job security; and
• sexual harassment.

Bargaining and collective agreements

The legislation will:

• simplify the better off overall test (BOOT) in a number of ways, including by:
  • allowing the BOOT to be applied globally (i.e. not a line-by-line comparison between the proposed agreement and a modern award);
  • allowing the Fair Work Commission (FWC) to directly amend or remove a term in an agreement that does not meet the BOOT; and
  • allowing the BOOT to be reassessed if there has been a material change in working arrangements that were not properly considered during the approval process;
• make multi-employer bargaining will be made easier in government-funded sectors, such as those in the NDIS, aged-care and childcare sectors;
• enable a separate stream of multi-employer bargaining will be available for other employers, with limited rights to take protected industrial action and greater access to FWC if bargaining stalls, including expanded FWC powers of compulsory arbitration on discrete issues in dispute;
• make it harder for a party to seek termination of an enterprise agreement that has passed its expiry date (except for the agreements made under the old WorkChoices legislation, which are likely to be extinguished by 2025); and
• confine the making of enterprise agreements to a ‘representative cohort’ of employees.

Gender equity

The legislation will:

• give employees a positive right to disclose (or not disclose) information about their own remuneration and any related terms and conditions of their employment to any other person, as well as to ask other employees (whether or not they work for the same employer) about their remuneration and other related terms and conditions of their employment;
• render invalid provisions in employment contracts that would be inconsistent with the above positive rights, and expressly prohibit employers from including these pay secrecy terms in a contract of employment entered into after the commencement of the legislation;
• make gender equity an objective of the FW Act to guide the FWC in exercising its various powers, particularly in relation to award-making and wage-setting;
• establish two new expert panels in the FWC to address the gender pay gap in the care and community sector and to advise the FWC on pay equity;
• give the FWC greater authority to order pay increases in sectors dominated by female workers through an ‘equal remuneration principle’ that will consider gender when assessing the value of work;
• expand the circumstances in which an employee may request a flexible work arrangement where they or a member of their immediate family or household experiences family or domestic violence;
• introduce a dispute resolution process to allow the FWC to arbitrate and make orders where an employer has refused an employee’s request for flexible work arrangement or did not respond to the request within 21 days; and
• insert three new protected attributes – breastfeeding, gender identity and intersex status – into the anti-discrimination provisions in the FW Act.

Job security

The legislation will:

• amend the FW Act to make job security an object of the FW Act; and
• limit fixed-term contracts for the same role to two consecutive contracts or one with a maximum duration, including renewals, of 2 years (exceptions will apply in limited circumstances, i.e. where fixed-term contracts have a legitimate purpose, such as where the contract is related to specific time period or project, or to manage an expected but temporary surge in work).

Sexual harassment

The legislation:

• amends the FW Act to prohibit sexual harassment in connection with work;
• creates a new dispute resolution framework (modelled on the framework that applies to general protections dismissal disputes) to deal with sexual harassment disputes; and
• empowers the FWC to make stop sexual harassment orders to protect applicants from future harm.

Miscellaneous

The legislation will:

• abolish the Registered Organisations Commission and the Australian Building and Construction Commission;
• increase the monetary cap on amounts that can be awarded in small claims proceedings commenced on or after the commencement of the legislation or 1 July 2023 (whichever is the later) from $20,000 to $100,000; and
• prohibit employers from advertising employment at pay rates that would contravene the FW Act.

These measures are the first part of the Federal Government’s workplace relations agenda. Further changes are expected to be introduced next year to implement the rest of the Government’s election policy commitments.