Both the Fair Work Amendment (Secure Jobs, Better Pay) Bill 2022 and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 are now law, and will no doubt impact many large employers and employees in Australia in some way.
As the sun sets on 2023 and we count down to the new year, it represents the perfect time to reflect and ensure you have implemented the changes and remain compliant.
To help, we have compiled a summary of these changes.
Why have the enterprise agreements changes been made?
Australia’s industrial relations landscape is undergoing the biggest changes it’s seen in over a decade and with this comes new compliance requirements for employers. Not only do these legislative changes aim to deliver a fairer workplace relations system for Australian workers. They also seek to improve job security, promote fair pay, and enhance overall workplace conditions
Summary of 2023 enterprise agreements changes
| Legislative change | Effective date | Summary of the new law |
|---|---|---|
| Enterprise Agreement Pre-Approval Process | 6 June 2023 | From this date, prescriptive pre-approval requirements of agreement making will be replaced with one broad requirement for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Safeguards will be introduced, including the FWC publishing a statement of principles which will contain guidance for employers on how they can ensure employees have genuinely agreed to the agreement. Such safeguards will include that employees have been informed of the bargaining process, their right to be represented and the terms of the enterprise agreement have been sufficiently explained. |
| Initiation of Bargaining | 7 December 2022 | From this date, an employee now is able to initiate bargaining simply by writing to their employer via a bargaining representative. The FWC can make a bargaining order following a request, even where the employer has refused to agree to bargaining. |
| Termination of enterprise agreements after nominal expiry date | 7 December 2022 | From 7 December 2022, the FWC is required to terminate an enterprise agreement upon application if it is satisfied that one of the following applies: its continued operation would be unfair for the employees covered by the agreement; or it does not, and is not likely to, cover any employees; or all of the following apply: ⸰ the continued operation of the agreement poses a significant threat to the viability of the business; ⸰ terminating the agreement is expected to reduce the risk of terminations of employment due to redundancy, insolvency or bankruptcy; and ⸰ if the agreement has terms about termination entitlements, the employer or employers it covers guarantees the termination entitlements to the Commission. |
| Single-interest employer authorisations | 6 June 2023 | From this date, if a union makes an application for a Single- Interest Employer Authorisation, they don’t need employer agreement, but rather need to show that a majority of employees who are employed by the employers want to bargain. Again, this doesn’t require a ballot and is likely to be able to be demonstrated via a petition. It also allows for a situation where a larger employer can be used by the union to carry the vote over a number of smaller employers. |
| Supported bargaining | 6 June 2023 | From this date, the FWC will be required to make a Supported Bargaining Authorisation if it is satisfied that it is appropriate for the relevant employers and employees to bargain together when considering: the prevailing pay and conditions in the relevant industry/ sector, including whether low rates of pay prevail in the industry or sector; whether the employers have clearly identifiable common interests (which may include geographic location, the nature of the enterprises to which the agreement will relate, the terms and conditions of employment in those enterprises, and whether they are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory); and whether the likely number of bargaining representatives is manageable. |
| “Zombie” Agreements sunsetting starts | 7 December 2022 | Zombie agreements are those made under pre-Fair Work Act legislation. All zombie agreements to sunset on 7 December 2023. |
| “Zombie” Agreements terminate if not extended by the FWC | 7 December 2022 | Capacity for FWC to extend this period on application in limited circumstances. By 6 June 2023, relevant employers are required to notify affected employees that: they are covered by a zombie agreement; and that the Agreement will terminate unless an application to extend the Agreement is made to the FWC. After a zombie agreement has ceased to operate, minimum pay and conditions will typically be set by the relevant modern award, unless a new enterprise agreement is negotiated. |
| Better Off Overall Test (BOOT) | 6 June 2023 | From this date, the BOOT will now be applied as a global assessment instead by a line-by-line comparison between the proposed agreement and the relevant modern award. |
| New FWC powers to correct errors in EAs | 7 December 2022 | A wide range of changes to the FWC powers regarding disputes in bargaining, better off overall testing, initiating bargaining by a person other than the employer, termination of old agreements and the termination process. |
How can mid to large sized businesses ensure compliance?
Worknice is designed for Australian mid to large businesses looking to control the HR paperwork chaos while automating compliance across the entire workforce. Below are a few technology based tools that help our current customers implement and manage all the workplace law changes that come now and in the future.
Ensure contract and leave compliance with approvals
Automated compliance alerts and reminders
Manage new or updated policy acknowledgement
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