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Ask Paul: Major changes to IR laws – will they help members?

Ask Paul: Major changes to IR laws – will they  help members?

Paul Gilbert, ANMF (Vic Branch) Assistant Secretary

The Federal Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (the Bill) received Royal Assent on 6 December 2022. That means it is now law, although some provisions have later operative dates.

Fixed-term or maximum-term contracts

Many members find themselves on either fixed term, or maximum term contracts. These are contracts that expire on a date, or in a circumstance, and were commonly used in vaccination hubs, but also more broadly. Members on these kinds of contracts miss out on hard-won benefits – for example redundancy pay and parental leave (once the contract finishes, so does parental leave).

While there are legitimate uses for some of these contracts, it is our experience that they are also mis-used.

Under the new laws, with limited exceptions, employers will be prohibited from making a fixed-term or maximum-term contract:

  • if the term exceeds two years (including any extension or renewal period); or
  • the contract contains the right to extend or renew more than once (even if the period of the contract is not more than two years); or
  • where you have previously been on two consecutive contracts for the same or substantially similar work. This restriction will apply even where there may be a gap between contracts if there is ‘substantial continuity of the employment relationship’ during the gap.

These rules commence on 7 December 2023, however the restriction also applies to a contract entered into before then if a subsequent contract is made after that initial contract ended, in circumstances which meet the ‘consecutive contracts’ requirements.

Exceptions to the rules above include where an employee:

  • has specialised skills that the employer does not have, but needs, to complete a specific task;
  • is engaged as part of a training arrangement

Or the employer:

  • needs additional workers to do essential work during a peak period;
  • needs additional staff during an emergency, or to replace a permanent employee who is absent for personal or other reasons;
  • is reliant on government funding to directly finance the employee’s position and there are no reasonable prospects that the funding will be renewed.

The majority of enterprise agreements that ANMF negotiates contain provisions that limit the use of fixed term and/or maximum term contracts to genuine limited-term circumstances. These amendments strengthen that and will provide these protections to all employees.

Flexible working arrangements

The law will require an employer, on receipt of a flexible work request, to respond in writing within 21 days of the request, and to meet with the employee making the request. The Fair Work Commission (FWC) will also have the power to arbitrate a dispute in relation to a flexible working arrangement where conciliation has not resolved the dispute. Prior to this, an employer’s refusal of a flexible work arrangement could not be formally reviewed by the FWC. In many enterprise agreements, ANMF has been able to negotiate provisions that confer on the FWC this right of review. These amendments will provide this right to all employees.

Sexual harassment and anti-discrimination

From 6 March 2023:

  • sexual harassment in connection with work will be expressly prohibited; and
  • employers will be held vicariously liable for sexual harassment unless they can prove that they have taken all reasonable steps to prevent the conduct; and
  • employees can make an application to the FWC for a stop-sexual harassment order.

Breastfeeding, gender identity and intersex status are new protected attributes under the anti-discrimination provisions of the Act.

Bargaining and enterprise agreements

Historically, only employers could choose to be part of a multi-employer enterprise agreement, and the Act significantly curtailed the rights of union members to pursue a multi-employer enterprise agreement, including banning industrial action. In mid-2023 multi-employer bargaining will be expanded across three streams:

  • single-interest bargaining
  • supported bargaining; and
  • cooperative workplace.

The most immediately attractive of these to ANMF members is likely to be the ‘single interest’ mechanism.

To be considered ‘single-interest’ the activities of the employers must be ‘reasonably comparable’. An employer with 20 or more employees can be required by the union to bargain for a single-interest multi-enterprise agreement, provided any current EBA has passed its nominal expiry date. We can also take protected industrial action to pursue a multi-employer EBA.

Disappointingly, this means that many members employed in medical clinics won’t meet the minimum employee test. This is an area that the ANMF is keen to focus on and will work with members to secure multi-clinic agreements where the criteria is met, and members seek that we do this.

We are also currently exploring the applicability of multi-employer agreements in aged care, and local government.

Importantly, commencing enterprise bargaining has historically been controlled by employers unless a majority of employees in a workplace can prove they wish to bargain. Now an employer must initiate bargaining if it receives a request from a union to commence bargaining if the employer has an enterprise agreement in place that has passed its nominal expiry date within the last five years.