Commonwealth industrial relations changes
There have been significant changes made to Federal industrial relations legislation recently. In September 2023, the Government introduced the Fair Work Amendment Legislation (Closing Loopholes) Bill 2023, which proposed a number of changes to the Fair Work Act 2009 (Cth) with major implications for both employees and employers. In December 2023, the Government agreed in Senate to split the original bill into two, and a ‘slimmed down’ first part of the Closing Loopholes Bill passed, with Royal Assent given on 14 December 2023. Key aspects of this first tranche of changes include the introduction of ‘same job same pay’ reforms for the labour hire industry, the enhancement of the rights of workplace delegates, the criminalisation of intentional wage underpayments and the strengthening of protections for workers experiencing family and domestic violence.
The second part of the Closing Loopholes Bill received Royal Assent on 26 February 2024. This includes changes to casual conversion obligations which will allow casual employees to seek conversion after six months of employment, or every six months thereafter, if they believe they no longer meet the (new) definition of a genuine casual. It also includes stronger protections for employee-like gig workers, employees in the road transport industry and those engaged by contractors.
Two further changes that have attracted widespread attention relate to the introduction of a power for the Fair Work Commission to make intractable bargaining orders in relation to protracted enterprise bargaining, as well as the introduction of a ‘right to disconnect’ outside of ordinary work hours. Some commentators have expressed concern about the impact these two changes could have on work flexibility and productivity. We expect these changes will have an impact on bargaining for those who are negotiating enterprise agreements in the Federal system over the coming months. We also expect to see increased litigation in the adverse action space as employees seek to enforce their ‘right to disconnect’.
State industrial relations system
Since local governments moved into the State industrial relations system on 1 January 2023, trade unions have increasingly used the broad provisions of section 44 of the Industrial Relations Act 1979 (WA) to bring a wide range of disputes before the Western Australian Industrial Relations Commission. We expect this trend to accelerate. Furthermore, with the 1 January 2025 expiry date for New State Instruments fast approaching, a number of our local government clients continue to progress bargaining for new industrial agreements.
Local governments should also be keeping an eye on the demarcation dispute between the West Australian Services Union (WASU) and the WA branch of the Construction, Forestry and Maritime Employees Union (CFMEU). This dispute will determine whether the CFMEU may represent certain employees of local governments traditionally represented by the WASU.
Feel free to reach out at any time to discuss these changes.
