In December 2020 the Federal Government proposed the most significant set of changes to the national workplace system since the passage of the Fair Work Act in 2009.
The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 represents the outcome of deliberations by five working groups convened by the Minister for Industrial Relations and featuring representatives from employer groups and trade unions.
The Federal Government has stated that the purposes of the Bill include assisting businesses to recover from the effects of the Covid-19 pandemic, providing more clarity and certainty to both employers and employees about their rights and responsibilities, increasing employee/employer flexibility, and streamlining and simplifying the current industrial relations system.
The more significant changes proposed by the Bill include:
- providing a statutory definition of a ‘casual employee’ and introducing ‘casual conversion’ provisions for all national system casual employees (including Award-free employees)
- instituting ‘double-dipping’ protections that allow employers to set-off casual loading payments against other amounts that may be subsequently claimed by an employee (such as in the Rossato case mentioned in our other article)
- permitting certain Award-covered part-time employees to agree with their employers to work additional hours outside their ordinary hours of work at ordinary rates
- increasing the maximum penalties for contraventions of the Fair Work Act, introducing new penalties for systematic and dishonest wage underpayments (including jail for individuals), and granting ASIC the power to disqualify such individuals from managing a company
- simplifying the pre-approval and approval process for enterprise agreements and limiting the application of the Better Off Overall test (BOOT)
- conferring a power on the Fair Work Commission to approve certain enterprise agreements that fail the BOOT where it is in the public interest to do so, with such agreements to operate for a maximum of 2 years
Action Items
Until the proposed changes in their final form become law, employers should:
- continue to monitor all developments and changes to the draft legislation
- review and update their pro-forma employment agreements to ensure they remain compliant with all current laws and the requirements of all applicable modern awards and enterprise agreements
