Next Wave of Secure Jobs, Better Pay Changes to Fair Work Act

June 4, 2023

Employers should note that commencing 6 June 2023, there will be:

  • Substantial changes to agreement making and the power of the Fair Work Commission to deal with bargaining disputes
  • A revised stream of multi-employer bargaining through single-interest bargaining, supported bargaining and cooperative bargaining
  • Additional obligations to consult with employee when dealing with requests extending unpaid parental leave, including giving the Fair Work Commission the power to deal with disputes
  • Increased onus on employers to respond to flexible working arrangements including additional obligation to discuss and genuinely attempt to reach agreement. The Fair Work Commission may arbitrate disputes
  • Pay secrecy prohibition applies to any new contracts entered into after this date
  • Employers required to provide notice of terminating zombie agreements to affected employees

Enterprise bargaining

While there are new opportunities for multi-employer agreements, and an increased role for unions, the most important changes affecting single enterprise (non-greenfield) agreements can be found in the new definition of genuinely agreed, the global assessment of the better off overall test, and increased power of the Fair Work Commission to intervene in bargaining disputes, including making ‘intractable bargaining workplace determinations. In more positive developments, the Fair Work Commission may vary agreements to correct minor errors in the terms of the agreement.

Extending Parental leave

The Parental leave NES entitlement to request an extension of 52 weeks to the unpaid leave now includes an obligation to respond in writing, consult with the employee and refusal may only be made on reasonable business grounds

Requests for Flexible work arrangement

The definition of de facto partner is amended to mean another person who, although not legally married to the first person, lives with the first person in a relationship as a couple on a genuine domestic basis (whether the first person and the other person are of the same sex or different sexes); or former de facto partner.

A refusal to grant a flexible work arrangement may only occur where the employee has discussed the request with the employee, genuinely attempted to reach agreement and the refusal has been made on reasonable business grounds.

The Fair Work Commission may arbitrate disputes over requests for a flexible work arrangement

Unlawful pay secrecy provisions in contracts

Employers face significant fines of up to $165,000 if continuing to include pay secrecy clauses in employment contracts

Sunsetting Zombie agreements

Employers must notify employees whose terms and conditions of employment that are covered by pre-Fair Work Act workplace agreements, that the ‘zombie agreement’ will automatically expire 6 December 2023 unless an application to extend the agreement is approved by the Fair Work Commission. If employers do not intend to apply for an extension the notice must include information on the consequences for the employee including the modern award that will automatically cover their terms and conditions of employment.

Further information and advice

Contact us if you would like further information or advice on any of these topics

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