The Federal Government has confirmed it will release its Secure Jobs, Better Pay Bill this Thursday, 27 October 2022 (Secure Jobs Bill), being its first major step in workplace reform since coming into office. The Secure Jobs Bill follows Labor’s pre-election promises for comprehensive industrial relations policies designed for future workplaces.
Tony Burke (Minister for Employment and Workplace Relations) has promised that the Secure Jobs Bill will deliver “… more secure jobs, better pay and a fairer workplace relations system for Australian workers.”
In accordance with Mr Burke’s media release and subsequent media coverage, the key changes which are to be included in the Secure Jobs Bill are:
- provisions to allow multi-employer bargaining, with or without the potential for industrial action in support of that bargaining across those employers;
- banning pay secrecy clauses to stop companies from prohibiting staff from disclosing their pay details. The objective of this amendment is to promote pay transparency, and end gender pay discrimination;
- making “gender equity” an objective of the Fair Work Act 2009 (Cth) (Fair Work Act) and the modern award system;
- amending the Better Off Overall Test as it applies to enterprise bargaining, and potentially to simplify its operation and/or to allow agreements in any case where there was majority employee support;
- implementing two new expert panels, one on Pay Equity and one for the Care and Community Sector. These new panels are designed to give the Fair Work Commission the specific expertise it needs to deliver pay equity outcomes;
- fully abolishing the Australian Building and Construction Commission; and
- establishing a statutory Equal Remuneration Principle to enable the Fair Work Commission to order pay increases for workers in low-paid, female-dominated industries. The purpose of this principle is to remediate the current system of equal remuneration orders, which can be costly, time consuming, highly adversarial and overwhelmingly ineffective. The new principle will also clarify that gender-based assumptions must not be taken into account in assessing work value.
Other pre-election promises
It is unclear whether any other pre-election promises will form part of the Secure Jobs Bill or whether they will form part of later rounds of reform. Even if they not included in the Secure Jobs Bill, other substantive changes we expect to see include:
- establishing “Jobs and Skills Australia” – an independent body in Australia to strengthen workforce planning;
- legislating an objective test to determine when a worker can be classified as a casual employee;
- strengthening sham contracting laws;
- establishing a Secure Australia Jobs Code – aimed at ensuring taxpayer money is used to support secure employment for Australian workers;
- consulting with State and Territory governments on portable leave entitlements for Australians in “insecure work”; and
- improving job security in the public sector.
What could be the legal effect of the changes?
It is difficult to speculate about the effect of any proposed changes before the Secure Jobs Bill is released. However, there are some important considerations for employers arising from the points above, including that:
- the implementation of a change to the definition of “casual employee” could have the practical effect of overriding the High Court of Australia’s decision in WorkPac Pty Ltd v Rossato [2021] HCA 23 (Rossato) and changes made by the previous Federal Government in response to the findings in Rossato. For an analysis of the implications of Rossato and previous amendments to the Fair Work Act in response, please refer back to our alerts here and here respectively;
- strengthened sham contracting laws designed to prevent employers from misrepresenting a contract of employment as an independent contracting agreement. This change is likely a response to Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 and the High Court of Australia’s focus on the primacy of contractual terms, as discussed in our previous alert here. Any such change could be expected to clarify the criteria required for a sham contact to exist; and
- the introduction of a portable leave entitlement scheme which would permit workers from certain industries to transfer accrued annual, personal and long service leave entitlements when they move from project to project or from job to job within a single industry.
The KWM team will provide further updates as the Secure Jobs Bill progresses through parliament and other changes are introduced by the Federal Government.
