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On 9 December 2020, the Attorney General tabled a new bill (the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020) which proposes significant changes to the Fair Work Act 2009 (Cth) and related laws.
While the amendments are intended to be effective by March 2021, many of the changes (particularly regarding enterprise agreement making) are being resisted by the ACTU and the Opposition. It is therefore expected that concessions will be needed in this area for the Bill to pass the Senate.
Key areas of IR reform in the Bill include:
As noted in our newsletter, changes to casual employment include:
Importantly for employers, offers to convert to permanent employment need not be made if there are reasonable business grounds not to make the offer and these reasonable grounds are based on facts which are then known or reasonably foreseeable (e.g. the position will cease to exist within the next 12 months).
The Bill seeks to simplify the enterprise agreement making and variation process through changes that include:
Key changes to the BOOT
Important changes to the BOOT require that the FWC must:
Other amendments include:
However, with objections from the unions and Labor, the Attorney General has announced that a number of concessions will be made in this area to ensure that the Bill is passed.
Greenfields agreements may be made for a duration of up to 8 years for projects of over $500 million, and projects between $250 million and $500 million, by ministerial discretion. These agreements will need to include defined annual wage increases over the term of the agreement.
Part time flexibility provisions are to be included across identified Modern Awards (including the Retail, Hospitality, Commercial Sales and the Vehicle Repair, Services and Retail Awards) which are “distressed sectors” most adversely affected by COVID-19.
The Bill allows such employers and part time employees whose ordinary hours of work are at least 16 hours per week, to make “simplified additional hours agreements” which allow the employee to work additional agreed hours at ordinary rates of pay.
The Bill also replicates some of the JobKeeper flexibilities, so that employers covered by the identified Modern Awards may give directions to an employee about their duties and location of work. These flexibilities are to be available for a period of 2 years from the passage of the Bill.
As noted in our recent newsletter, the Bill introduces a new criminal offence for dishonest and systematic wage underpayments and increases the value and scope of civil penalties and orders.
This includes a fifty per cent uplift to the ordinary penalty rates for breaches of the sham contracting provisions and remuneration related breaches, and a new penalty calculation method for remuneration-related breaches by companies based on the benefit they obtained from the contravention.
The Bill seeks to enable employees to more easily recover entitlements by increasing the cap for small claims from $20,000 to $50,000 and enabling the Federal Circuit Court and the Magistrates Court to refer small claims to the FWC for conciliation, and arbitration by consent.
The Attorney-General has written to the President of the FWC requesting consideration of how best to insert loaded rates into the Retail, Hospitality, Restaurant and Registered & Licensed Clubs Awards. Employer and employee representatives are to be involved in the review process, which is to be completed by the end of March 2021.
The Attorney-General has also announced that the Fair Work Ombudsman will be given the ability to provide authoritative advice on request. The Ombudsman must not fine businesses that rely on that advice and remediate any identified error.
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