Navigating Employment Law Changes – What Employers Need to Know Mid 2023 Part 1
As we approach the halfway mark of the year, significant changes are underway in Australia’s employment law landscape with the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The changes to come into effect are the most substantial since the enactment of the Fair Work Act 2009 (Cth) and will impact workplaces nationwide, necessitating employers’ understanding of their implications. While a number of initial amendments have taken effect, this article provides an overview of upcoming changes.
AS OF 1 MAY 2023
New Rules for Workplace Closures
On 1 May 2023, many modern awards were updated to include rules on workplace shutdowns such as over the Christmas/New Year period and other periods in which businesses temporarily close. The new rules enable employers to require employees to utilise their paid annual leave during temporary shutdowns provided written notice is given to all affected employees, at least 28 days in advance. The notice period can be shortened if an agreement is reached between the employer and the majority of affected employees.
In cases where an employee does not have sufficient paid annual leave to cover the entire shutdown period, alternative options can be negotiated such as using accrued time off, taking annual leave in advance, or opting for unpaid leave.
AS OF 6 JUNE 2023
Embracing Flexibility: The New Era of Work Arrangements
The new flexible working arrangement amendments expand the eligibility for employees to request flexible working arrangements and impose obligations on employers to respond appropriately in discussing the request, providing a valid reason for refusal, and allow employees to appeal decisions. Employees who can make requests will be expanded to include employees, or a member of their immediate family or household, experiencing family and domestic violence and employees who are pregnant.
Navigating Requests for Flexible Work and Extended Parental Leave
From 6 June 2023, if a dispute arises from a request for flexible working arrangements or an extension of unpaid parental leave, employees can make an application to the Fair Work Commission. To reduce the chances of a dispute being brought to the Fair Work Commission, employers should take appropriate steps in dealing with the request and seek legal advice if they are uncertain on how to respond. We also recommend updating relevant internal policies and procedures to ensure compliance with the new application process.
Amplifying Multi-Employer Bargaining Opportunities
Effective from 6 June 2023, there will be changes to multi-employer bargaining, making it easier for employees to initiate negotiations among multiple employers who share common interests and are deemed “reasonably comparable”. These interests can include factors such as geographical location, regulatory framework, enterprise nature, and employment terms and conditions. This is not available to business with fewer than 20 employees or in the civil and commercial construction industry without the consent of the employer.
Bargaining Revamped and Changes to the Better Off Overall Test
One of the key changes pertains to the procedural requirements for the approval of agreements, unilateral termination, and the Better Off Overall Test. The Act replaces the previous prescriptive pre-approval requirements with a broader criterion, the Fair Work Commission is now required to assess an enterprise agreement globally instead of line-by-line and to be satisfied it has been genuinely agreed upon by employees. In addition, the Fair Work Commission can unilaterally amend the enterprise agreement after seeking the views of the parties without having to accept an undertaking from an employer. Employers should seek advice on their industrial strategy to leverage the opportunities presented by the changes while mitigating the newly introduced risks.
Dealing with Looming Expiry of Zombie Agreements
“Zombie agreements” refer to pre-Fair Work Act 2009 (Cth) agreements which have passed their nominal expiry date but continue to operate because they have not been terminated or replaced by a new agreement. Zombie agreements will automatically “sunset” (terminate) on 7 December 2023 unless an extension is granted by the Fair Work Commission. Employers, before 6 June 2023, must notify employees who are covered by a zombie agreement that the agreement will be terminated on 7 December 2023, unless extended by application to the Fair Work Commission.
OUR RECOMMENDATIONS
We recommend employers to take the following steps:
- Conduct a thorough review of existing employment contracts and consult with legal professionals to make necessary amendments in accordance with the new legislation and relevant industrial instrument.
- Implement internal policy changes to ensure adherence to the processes related to flexible working arrangements.
- Ensure that those responsible for approving leave requests are well-informed about the new shutdown rules.
- Stay informed about the new bargaining arrangements that may affect your business.
If you have any questions or require further guidance regarding these upcoming changes, our experienced employment team is here to assist you. Please do not hesitate to reach out to Amy La Verde for all your employment law needs.
