The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 entered Parliament on Wednesday, 9 December.
Attorney-General and Industrial Relations Minister Christian Porter flagged the casual employment changes earlier this week as a measure to provide more certainty for businesses as part of the recovery from the coronavirus crisis.
Mr Porter said the reforms represent a fair and balanced response to problems that all sides of the debate agree must be fixed in order to give employers the confidence to invest and get Australians back to work.
“The economic supports put in place by the Morrison government, such as the JobKeeper and JobSeeker payments, ensured that the Australian economy fared significantly better than most during the pandemic and there are already positive signs that we are starting to bounce back strongly,” Mr Porter said.
“But our success has not been without pain for many workers who have lost jobs or lost working hours. Regrowing those jobs — especially in some of our hardest hit industries such as the retail and hospitality sectors — is an enormous challenge that our IR reforms will help us to meet.”
What is in the reform bill?
According to the bill’s explanatory memorandum, the bill will introduce a statutory definition of a casual employee that focuses on the offer and acceptance of employment and draws on common law principles.
The measure is aimed at preventing unfair outcomes in situations where employers have to pay an employee twice for the same entitlement.
A statutory obligation will be introduced for employers to offer regular casual employees a conversion to full- or part-time employment, unless there are reasonable business grounds not to do so.
Under the entitlement, employers will be required to offer an eligible casual employee conversion to full- or part time employment after 12 months of employment.
The bill will also address award complexity by extending existing JobKeeper flexibilities in the Fair Work Act concerning duties and location of work to employers and employees to whom identified modern awards apply.
The flexibilities will be available for a period of two years following the passage of the bill through Parliament.
Part-time flexibility provisions will also be made available across identified modern awards, enabling employers and employees to work together to agree additional hours of work to part-time employees who already work at least 16 hours per week, to be paid at ordinary rates of pay.
Compliance and enforcement
The bill introduces a new criminal offence for dishonest and systematic wage underpayments, and increases the value and scope of civil penalties and orders that can be imposed for non-compliance.
Employees will be able to recover their entitlements by increasing the small claims cap from $20,000 to $50,000.
The Federal Circuit Court and magistrates courts will be able to refer small claims matters to the Fair Work Commission for conciliation and consent arbitration.
Further, the bill will prevent businesses from publishing job advertisements with pay rates below the minimum wage.
The bill will enhance these processes by reducing the level of prescription imposed by the Fair Work Act and providing greater flexibility as to the methods by which employees may be provided with a fair and reasonable opportunity to consider whether to approve an enterprise agreement prior to the vote.
The Fair Work Commission will be required to listen to the views of the bargaining parties in the approval process, and intervention by other persons before the FWC will be limited. In addition, the commission will be required to approve agreements within 21 working days.
The bill will also enable franchisees to opt in to a current single-enterprise agreement that covers a larger group of employers that operate under the franchise. The measure ensures that industrial instruments do not transfer where an employee may transfer between associated employing entities at the employee’s initiative.
Agreements on major construction projects
According to the bill, the Fair Work Commission will be allowed to approve longer-term greenfields agreements made in relation to the construction of a major project, to specify a nominal expiry date of up to eight years after the day the agreement comes into operation.
Where the greenfields agreement specifies a nominal expiry date more than four years after the day on which the Fair Work Commission approves the agreement, the agreement must include a term that provides for annual pay increases for the nominal life of the agreement.