The Albanese Government has introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, better known as the 'Secure Jobs, Better Pay Bill', to Federal Parliament this week. This is the government's first major legislative commitment to workplace relations since the Jobs and Skills Summit in September 2022. This Bill broadly aims to address gender inequality and overhaul the enterprise bargaining system, as well as abolishing the Registered Organisations Commission (ROC) and the Australian Building and Construction Commission (ABCC).

Secure Jobs, Better Pay Bill

On 27 October 2022, two days after it handed down its 2022-2023 budget, the government has proposed legislation in Federal Parliament in accordance with its election promise of increasing access to secure work and improving pay and conditions. The Secure Jobs, Better Pay Bill was introduced and read by The Honourable Tony Burke, Minister for Employment and Workplace Relations in the House of Representatives, and contains a number of initiatives which already appear in the government's Budget.

If passed through both Houses, the Bill would amend the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009 and other key workplace legislation in ways that Labor has described as aiming "to modernise Australia's workplace relations system and get wages moving." However, early indications are that the Bill will face pushback from the Opposition, with Deputy Leader Sussan Ley already opining that the legislation is "rushed" and "could not come at a worse time for businesses" .

Gender equity and recognition

Themes of gender equity and recognition can be repeatedly identified throughout the draft wording of the Bill, with the majority of the amendments directed at achieving a greater balance in access to employment and entitlements across genders. These proposed changes include:

• Introducing an express workplace right for employees to disclose their remuneration or ask about another employee's remuneration. Pay secrecy terms (which often take the form of contractual clauses) will be rendered ineffective, meaning that employers will be unable to prohibit their employees from discussing their pay with their colleagues. It is the government's hope that this will increase remuneration transparency, highlight discrepancies in pay between genders, and reduce the occurrence of gender pay discrimination.
• Inserting a new Part 3-5A into the Fair Work Act dedicated to prohibiting sexual harassment in connection with work. Principals may be vicariously liable for the acts of their employees or agents.
• Expanding the anti-discrimination provisions in the Fair Work Act to include breastfeeding, gender identity and intersex status.
• Adding gender equity to the list of key objectives in the Fair Work Act, meaning that critical decisions of the Fair Work Commission (FWC) such as the annual wage review and amendments to modern awards must be consistent with this objective.
• Implementing a statutory Equal Remuneration Principle into federal law to better facilitate pay increases in female-dominated low paid industries. This has the aim of circumventing some of the difficulties caused by the current process of equal remuneration orders – orders which are often expensive, time-consuming and difficult to obtain. The Bill will also allow the FWC to make equal remuneration orders on its own initiative, rather than only on application.
• Establishing two new Expert Panels in the FWC targeted at gender equity, with one allocated to the care and community sector and the other to pay equity overall. Expert Panel members are involved in exercising specific functions of the FWC, with the only Expert Panel currently established conducting the annual wage review.

Other changes

A large portion of the Bill is to effect the abolition of the ROC and ABCC, both statutory authorities established under the previous government. The Fair Work Ombudsman will take on some of the resourcing and records of these authorities in order to perform a reduced version of their functions, including in the building and construction industry.

Other workplace relations reforms contemplated by the Bill include:

• Prohibiting fixed-term and maximum-term contracts longer than 2 years, subject to certain exceptions (such as essential work during peak periods, emergencies, apprenticeships/traineeships, where the employee earns over the high income threshold for the first year of the contract, or where permitted by the applicable modern award).
• Expanding on the process employers are required to undertake when responding to flexible working requests, including an obligation to discuss the request with the employee and make genuine attempts to reach agreement before refusing a request.
• Amending the threshold requirements for terminating an enterprise agreement after its nominal expiry date.
• Automatically terminating agreement-based transitional instruments including collective agreements after specified periods of time.
• Revising the enterprise agreement bargaining and approval processes, including changing the 'better off overall test' (BOOT) to a "global assessment" of both more and less beneficial terms when compared to the applicable modern award which gives consideration to the views of the bargaining representatives.
• Revamping the multi-employer bargaining system to allow industry bargaining between businesses which share interests but are otherwise not associated or involved in common ventures.
• Reforming the low-paid bargaining provisions to assist employees and employers in low-paid industries such as aged care, disability care and early childhood education. The new 'supported bargaining' stream will relax the current rules to allow the FWC to authorise multi-employer bargaining and assist parties to come to an agreement after considering whether it is appropriate for parties to bargain together.
• Mandating arbitration for long-term 'intractable' enterprise bargaining disputes.
• Prohibiting job advertisements that specify unlawful rates of pay.

Moving forward

The Secure Jobs, Better Pay Bill represents the largest proposed workplace relations reform since the government came to power earlier this year. It follows on the heels of September's Jobs and Skills Summit and the workplace issues it identified. When introducing the Bill to the House of Representatives, Tony Burke declared that it "will not fix every problem in our workplace relations system, but it's a strong start", and that while he anticipated there will be attempts to delay its passage through Parliament, he considers that there is an urgency caused by a decade of low wages and insecure work. "Australians have waited long enough", he said. " And while waiting, they have turned up every day and done their job. It’s now time we did ours."

While it will not take effect as binding law until it is passed by both Houses of Parliament, and is likely to undergo amendment before it reaches its final form, employers should consider the impacts that the Bill may have on their businesses and workforces to get ahead of any changes. With the gender equity aspects of the Bill less contentious than those in the enterprise bargaining space, it is expected that those changes will be passed in the short-medium future even if the remainder of the Bill is subject to debate. Employers should review their employment contracts and employee confidentiality agreements to ensure they do not include pay secrecy clauses, embark on a process of identifying and remedying any gender-based discrepancies in workers' pay, and prepare for wage increases in low-paid sectors such as care industries. Changes to flexible working entitlements may also warrant a review of employer policies.

As the Bill progresses, we will continue to provide commentary and analysis. We will focus in more detail on the more contentious areas of the Bill, including the proposals for reform to enterprise bargaining including industry wide bargaining in some industries and the new rules in relation to termination of expired enterprise agreements. The initiatives, if passed as proposed, are very significant, and will require a new strategic approach to enterprise bargaining for many employers.