Following the recent federal election which returned the Labor party to power for the first time in 9 years, focus turned to the question of what changes the government was likely to make to the existing workplace and industrial relations landscape.

During the election campaign, federal Labor promised to focus on increasing worker protections (including workers in the ‘gig economy’), simplifying the enterprise bargaining system, improving workplace productivity, and increasing immigration pathways for skilled workers.

In advance of announcements about these changes, the government held a Job and Skills Summit on 1 and 2 September 2022. The summit was attended by representatives from a range of stakeholders including the government, business/industry, and trade unions.

Areas of Focus

The areas of focus of the summit (and its resulting outcomes) consisted of:

• a better skilled, better trained workforce
• addressing skills shortages and strengthening the migration system
• boosting job security and wages, and creating safe, fair and productive workplaces
• promoting equal opportunities and reducing barriers to employment
• maximising jobs and opportunities in our industries and communities

Within each of these areas, summit attendees considered potential immediate outcomes, areas for further work, and complementary existing commitments.

Flagged Industrial Relations Changes

Of these specific areas of focus, a substantial majority of the summit was dedicated to the highly contentious and political subjects of workplace protections and industrial relations. As expected, the summit resulted in limited consensus on these subjects.

Despite this lack of consensus, the government proclaimed the summit a success, and announced the following immediate and forthcoming workplace and industrial relations changes.

Enterprise Agreements

In the area of industrial relations, the government announced plans to implement the following immediate changes to the existing enterprise bargaining system within the Fair Work Act:

• simplifying the procedures involved in bargaining and approving enterprise agreements;
• removing unnecessary complexity around the Better Off Overall Test (BOOT);
• empowering the Fair Work Commission to provide practical assistance to parties during the bargaining process; and
• simplifying the process for terminating enterprise agreements that have passed their nominal expiry dates.

Workplace Protections

In addition to these planned enterprise agreement changes, the government also announced plans to immediately introduce the following workplace protections into the Fair Work Act:

• greater rights for employer bargaining representatives and union delegates;
• improved access to flexible working arrangements and unpaid parental leave;
• stronger adverse action, discrimination and harassment protections.

Beyond the immediate introduction of these planned protections, the government announced further future plans to:

• introduce a federal ‘unfair contract’ jurisdiction; and
• implement further improvements to the modern awards system and the National Employment Standards.

Complementary Existing Commitments

The above proposed changes have been announced in light of complementary existing commitments and recent legislative changes, including:

• criminalising wage theft;
• prohibiting pay secrecy clauses, and a corresponding statutory right for employees to disclose their remuneration;
• introducing an objective statutory test for determining whether work is casual or part-time;
• establishing a right to superannuation within the National Employment Standards; and
• extending the jurisdiction and powers of the Fair Work Commission to hear disputes involving ‘employee-like types of work (e.g. workers in the gig economy).

Next Steps

As most, if not all, of the announced changes are legislative in nature, business and industry will need to wait for relevant legislation to be introduced into parliament before the nature and scope of the changes can be clearly ascertained.

Nevertheless, it is anticipated that many of the changes are likely to be reasonably worker-friendly, and that they will pass both houses of parliament with the support of the cross-bench.

Whether the changes result in an increase in enterprise bargaining remains to be seen.

In anticipation of these changes, employers and businesses generally should:

• closely monitor news and industry updates for further reporting about new workplace and industrial relations legislation as it is introduced; and
• seek professional legal advice as such legislation is introduced, particularly in relation to potential compliance issues as between the terms of the legislation and the contents of existing contracts, policies and procedures.

Questions/Assistance

If you have any questions in respect of the above or would like any other employment related assistance, please contact the Matthews Folbigg Workplace Solutions employment law team:

Stewart Gough Principal P: (02) 9806 7483 E: stewartg@matthewsfolbigg.com.au

Peter Doughman Senior Associate P: (02) 9806 7412 E: peterd@matthewsfolbigg.com.au

DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.

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