- Date:
- 5 June 2023
The amendments are being introduced in stages, allowing employers a period of time to ensure their workplaces are compliant.
In March 2023 we published a summary of the key changes in our blog Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 - key changes.
As a quick reminder, we have set out below the changes that came into effect from 6 June 2023.
Zombie agreements
As detailed in our blog, there has been a complete overhaul of the operation of zombie agreements (i.e. enterprise agreements made before 31 December 2009 and which have continued to operate after their nominal expiry date).
These agreements will terminate automatically on 6 December 2023 unless otherwise extended by application to the Fair Work Commission (FWC).[1]
Employers covered by zombie agreements must notify each employee who is covered by a zombie agreement and employed by the employer, in writing by 6 June 2023 that they are covered by a zombie agreement, and that the agreement will terminate as of 6 December 2023 unless an application is made to the FWC to extend the life of the agreement.[2]
The FWC has released a list of possible zombie agreements. Victorian public sector employers should review the list and take appropriate steps if they are covered by a zombie agreement.
New bargaining and agreement provisions
Statement of Principles on Genuine Agreement
On 12 May 2023, the FWC released a Statement of Principles on Genuine Agreement (Statement). This applies to the process for agreement-making as of 6 June 2023[3] and contains the FWC's expectations regarding whether an enterprise agreement has been 'genuinely agreed to' by employees.
As a general rule, an enterprise agreement will not have been ‘genuinely agreed to’ where the agreement was not the product of an ‘authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises’. Further, the employees who voted on the agreement must have had ‘an informed and genuine understanding of what was being approved’.
Amendments to the BOOT
A new 'better off over test' (BOOT) will apply as of 6 June 2023 as a global assessment rather than a line-by-line comparison, for both existing employees and 'reasonably foreseeable' employees. The FWC will also have extended powers to amend agreements to ensure compliance with the BOOT.
The FWC will not be required to accept an undertaking from an employer if it considers the enterprise agreement does not meet the BOOT, but rather the FWC can unilaterally amend the enterprise agreement after seeking the views of the parties.
In addition, the FWC can also amend an enterprise agreement after its approval if it is later determined that it does not meet the BOOT in respect of a particular class of employees. Such amendments can also have retrospective operation, but no civil penalties will apply in respect of retrospective changes.
Multi-enterprise agreement changes
As of 6 June 2023, three streams of multi-enterprise agreements will apply:
- cooperative workplace agreements - agreements that are initiated by, and made with, more than one consenting employer;
- single interest employer agreements - agreements that can be driven by employee bargaining representatives (or unions) and require an application to be made for a single interest employer authorisation to join several employers with a common enterprise to bargain (provided their existing agreement have passed their nominal expiry date); and
- supported bargaining agreements - agreements that replace low paid bargaining agreements, but extend these types of agreements to any employees and employers that require support to bargain and have not traditionally been covered by an enterprise agreement.
Fair Work Commission powers
As of 6 June 2023, the FWC will have broader powers to make a bargaining related workplace determination and intractable bargaining declarations.
Changes to flexible working arrangements and extensions to unpaid parental leave
From 6 June 2023, employees will have expanded rights to request flexible working arrangements and an extension to unpaid parental leave.
Firstly, grounds for requesting a flexible working arrangement now include:
- where a person or a member of their immediate family or household is experiencing family or domestic violence; and
- where an employee is pregnant.
Secondly, employees can now challenge an employer's refusal to grant a flexible work requests and/or to extend parental leave in the Fair Work Commission (previously this was only available in circumstances where the right to flexible working arrangements was included in an enterprise agreement).
Also, from 6 June 2023, there is a new section 65A which clarifies the obligations of employers when refusing requests including that before refusing a request, the employer must (amongst other things), meet with the employee, genuinely try and reach agreement with the employee and have regard to the consequences of any refusal for the employee.
As clause 10 of the Victorian Public Service Enterprise Agreement 2020 (VPS EA) already enables an employee to contest a refusal to grant flexible work requests, new section 65A of the FW Act will not present a significant change, however it is important to bear in mind that the category of employees who are granted this right has been expanded. Clause 55.23 of the VPS EA provides for the right to apply for an extension of parental leave.
Penalties for pay secrecy provisions
From 7 June 2023, employers are prohibited from including pay secrecy clauses in new employment contracts. Employers who include those provisions can be liable for civil penalties under the FW Act.
Contact our team
Please get in touch with our team if you need assistance with any employment or industrial relations matters regarding the Victorian Public Sector.
Assistant Victorian Government Solicitor
E. frances.anderson@vgso.vic.gov.au
Managing Principal Solicitor
E. dana.wintermantel@vgso.vic.gov.au
Managing Principal Solicitor
E. veronica.belot@vgso.vic.gov.au
[1]Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth), Schedule 1 cl 481; Fair Work Legislation Amendment (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Schedule 3 cl 20A(2).
[2] Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth), Schedule 1 cl 481; Fair Work Legislation Amendment (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Schedule 3 cl 20A(3).
[3] Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth), Section 188B.
Updated