Insights from FIA legal partner Kingston Reid.

The Jobs and Skills Summit closed on Friday in Canberra with the Government saying it is committed to “immediate” action to update the Fair Work Act. This is in addition to a list of what it has described as ‘complementary existing commitments’ that it committed to at the election and, in many cases, are already in bills that are before parliament.  Here are links to previous Insights: Respect@work and gender equality and Post-election Insight.

Before we throw our current copies of the Fair Work Act in the bin, remember that this immediate action starts with business and government consultation and must be passed by the parliament, including an upper house where the government needs the support of the Coalition or a combination Greens and a crossbencher to get it through. Those who attended the Kingston Reid Job Summit Fringe event in Canberra heard from representatives of these three groups and it suggests that support is anything but guaranteed.

The fact that the change will not be instantaneous is important because there is a lack of clear detail in what the government has announced.

The Jobs + Skills Summit Outcomes document published by the Government says that it will update the Fair Work Act to create a “simple, flexible and fair new framework”.

Below we have set out what the government has said, suggested what the government might mean and provide our view on what this could mean for you.

What the government has said:

A new framework that: “Ensures all workers and businesses can negotiate in good faith for agreements that benefit them, including small businesses, women, care and community services sectors, and First Nations people.”

What the government might mean:

This is a clue that the “sector bargaining”, referred to by the ACTU during the summit, may not only be drawn along traditional industry or “single interest” employer lines. The inclusion of a reference to “small businesses”, “women” and “First Nations people” suggests that there may be an ability for people in these categories to bargain collectively even if they work in different industries and forms of business. However, it also reflects a reference to the current low paid bargaining stream which exists but is not utilised.

What this could mean for you:

Employers will need clarity on whether these new forms of bargaining will be an opt-in model for them or whether they can be forced to bargain along these new lines.

What the government has said:

A new framework that: “Removes unnecessary complexity for workers and employers, including making the Better Off Overall Test simple, flexible and fair.”

What the government might mean:

This suggests that the Government will revise previous proposals to simplify the Better Off Overall Test to focus on an overall comparison of the benefits terms and conditions of employment rather than a line-by-line approach. This should include restrictions on unrealistic and hypothetical comparisons between working arrangements under the proposed enterprise agreement and underlying award. Hopefully, there may also be an ability to focus on the non-monetary needs of the group of employees voting for the agreement and the specific needs of the business they are working in.

What this could mean for you:

If previous feedback from employers is genuinely embraced, this is one of the most promising developments that might come from these reforms. The most important question is whether any relaxation of the Better Off Overall Test will be restricted to union negotiated enterprise agreements, effectively making unions “gate keepers” for the improved system.

What the government has said:

A new framework that: “Gives the Fair Work Commission the capacity to proactively help workers and businesses reach agreements that benefit them, particularly new entrants, and small and medium businesses.”

What the government might mean:

This suggests that the Fair Work Commission may be given stronger arbitral powers somewhere between the current bargaining orders (which are about how bargaining is conducted rather than what the enterprise agreement will be) and the making of entire arbitrated agreements when industrial action is terminated to prevent serious damage to the bargaining parties, third parties or the economy.

One possibility is that these new arbitral powers could be used when there are a small number of issues that are preventing an enterprise agreement from being made as a means of avoiding industrial action. The specific reference to “…new entrants, and small and medium businesses.” also suggests that the Fair Work Commission may be given a more proactive role in guiding bargaining where the participants have limited resources or experience in the bargaining process.

What this could mean for you:

Giving the Fair Work Commission further powers to help employers and employees reach agreement is a promising development and potentially fills a gap in the current system. Any arbitral power must be underpinned by a productivity objective and an overriding principle that arbitrated terms must be aimed at simplifying agreements rather than adding to complexity. Employers should be wary of these reforms being used as a trojan horse to restore the broad arbitral powers to resolve any workplace dispute which led to frequent destabilising litigation last century. Instead, the powers need to be tightly focussed on bargaining and the making of enterprise agreements. It will be interesting to see what effect this has on the good faith bargaining provisions.

What the government has said:

A new framework that: “Ensures the process for agreement terminations is fit for purpose and fair, and sunsets so called ‘zombie’ agreements.”

What the government might mean:

The paring of two opposing issues (use by employers of agreement terminations as a bargaining tactic and the potential difficulties in terminating zombie agreements) suggests that there will not be a blanket abolition of the power to terminate enterprise agreements. Employers should expect a sunset provision for pre-Fair Work Act enterprise agreements similar to the coalition government’s omnibus bill and further preconditions that must be met before the Fair Work Commission can terminate an enterprise agreement. These pre-conditions are likely to be based around employee welfare and prevention of agreement termination applications as a tactic to gain leverage in enterprise bargaining negotiations with employees.

What this could mean for you:

Any employer intending to terminate an existing enterprise agreement should consider timing very carefully. There is a risk that the changes will be legislated to commence from a policy announcement date rather than the date the legislation commences. It will also be important to understand the impact of Minister Burke’s letter to the Fair Work Commission, which notifies it of the proposed changes, on any decision that it may make to terminate an enterprise agreement.

What the government has said:

Update the Fair Work Act to: “Provide proper support for employer bargaining representatives and union delegates.”

What the government might mean:

There is no detail about what this statement will mean in practice. While it could be the provision of additional resources to the Fair Work Commission to facilitate bargaining, it is also possible that it encompasses advisory support. Another possibility is that this will be used as a basis to introduce a mechanism for funding union involvement in bargaining through an employer or employee bargaining fee.

What this could mean for you:

The government has not explained what “proper support” means. In its most extreme form, this change could have a significant impact on employers (and potentially employees) who may be required to pay for it operationally or financially.

What the government has said:

Update the Fair Work Act to: “Provide stronger access to flexible working arrangements and unpaid parental leave so families can share work and caring responsibilities.”

What the government might mean:

It is likely that these reforms will be centred around the equalising of parental leave under the Fair Work Act regardless of the gender of parents. There is also potential for changes that make it harder for employers to resist employee requests for flexible working arrangements such as “working from home”.

What this could mean for you:

Regardless of the final form of the changes, it is unavoidable that employers will need to reassess their strategies for managing requests for flexible working arrangements.

What the government has said:

Update the Fair Work Act to: “Provide stronger protections for workers against adverse action, discrimination, and harassment.”

What the government might mean:

This is an issue which has not been discussed publicly and was a surprise inclusion to many. The link between “discrimination and harassment” and “adverse action” already exists in a legal sense. It is possible that this suggests a watering down of the current tests applied by the Courts in adverse action cases.. It also suggests that there could be a move to importing concepts of procedural fairness into the general protections framework.

What this could mean for you:

The High Court has carefully balanced the rights of employers, employees and unions in its interpretation of the current adverse action laws so that rights are protected but the business needs of employers are not undermined. Any legislative attempt to change this delicate balance will involve further litigation to determine its impact.

The government has said that the Department of Employment and Workplace Relations will commence detailed consultations with business and unions on these matters in the week commencing 5 September 2022.

The government has also said that “Business, unions and Government committed to work proactively together to:

• Strengthen tripartism and constructive social dialogue in Australian workplace relations
• Revitalise a culture of creativity, productivity, good faith negotiation and genuine agreement in Australian workplaces
• Establish a tripartite National Construction Industry Forum to constructively address issues such as mental health, safety, training, apprentices, productivity, culture, diversity and gender equity in the industry

The use of expression “tripartism” suggests that the Jobs and Skills Summit is likely to be the first of many roundtable discussions convened by government to try to find common ground between business, unions and government. The danger for employers is that unions and government appear to be aligned on many issues but business representatives bring a much more diverse range of views which makes it difficult to develop a united position

Areas for further work

The government has also identified the following areas for further consultation with unions and business.

• Consider options to support the Fair Work Commission build cooperative workplace relationships.
• Consider how to best help employer representatives and unions to improve safety, fairness and productivity in workplaces.
• Amend relevant legislation to give workers the right to challenge unfair contractual terms.
• Initiate a detailed consultation and research process on the concept of a living wage, reporting back in late 2023.
• Initiate a detailed consultation and research process considering the impact of workplace relations settings (such as rostering arrangements) on work and care, including childcare.
• Consider allowing the Fair Work Commission to set fair minimum standards to ensure the Road Transport Industry is safe, sustainable and viable.
• Ensure workers have reasonable access to representation to address genuine safety and compliance issues at work.
• Consider possible improvements to Modern Awards and the National Employment Standards.

Consistent with comments made by government representatives at the Kingston Reid Job Summit Fringe, these further areas of reform appear to be aimed at cementing ideas for the future as part of a long-term legislative agenda. Employers should keep a watchful eye as these ideas become more solid policy proposals.

Kingston Reid will continue to keep our clients informed as the process of workplace law reform unfolds.

The Honourable Grace Grace MP, Minister for Industrial Relations announced an independent review of the Work Health and Safety Act 2011 (WHS Act).

Public consultation is now open.

The review is considering the overall effectiveness of the key components of the WHS Act in achieving its objectives.

Have your say and help us to ensure the safety of Queensland workers.

Consultation closes Friday 23 September 2022.

The FIA is pleased to announce a new media partnership with the latest construction magazine from Prime Creative Media, to provide members with access to a new publication and the latest construction news.

Inside Construction is Australia’s leading news resource for the civil engineering and commercial construction industry. Providing the latest news, views and insights into the industry, Inside Construction is produced by a team of leading journalists at Prime Creative Media who regularly engage with key influencers in the construction sector.

Member's can access the first issue here, which includes an article from the FIA on the latest FIA safety initiative.

Member's can also submit news to our CEO for potential future features in the publication.

ACCESS THE LATEST INSIDE CONSTRUCTION MAGAZINE HERE

In addition to the Fair Work Commission handing down its Annual Wage Review decision for 2022, there are further significant changes effective from 1 July 2022. Business Australia provides an update below.

In addition to the Fair Work Commission handing down its Annual Wage Review decision for 2022, there are further significant changes effective from 1 July 2022. 

High-income threshold

For unfair dismissal cases, the high-income threshold has increased to $162,000 with the compensation limit of $81,000 for dismissals occurring on or after 1 July 2022.

Filing fees

The application fee for unfair dismissals, general protections, and bullying and sexual harassment at work applications made under the Fair Work Act 2009 has increased to $77.80.

Superannuation guarantee

The superannuation guarantee has increased from 10% to 10.5%. This is in line with the superannuation guarantee rate that is scheduled to increase to 12% by July 2025. For further information about this, see the ATO website.

Supported wage system

The Fair Work Commission issued a determination varying the Supported Wage System schedule in some modern awards. This increased the minimum amount payable to $95 per week wherever appearing in the Supported Wage System schedules of the awards.

Read this 29 June circular.

See the initial 15 June circular on wage increases.

To view the determination click here.

Labor’s pre-election ‘Secure Australian Jobs’ policy included the principle that if you work the same job, you should get the same pay. Labor has committed to ensuring that workers employed through labour hire providers receive no less than workers employed directly by the labour hire users.

This will undoubtedly be achieved through introducing legislation that makes ‘same job, same pay’ a minimum entitlement.
 
What this likely change might mean for both labour hire providers and labour hire users is considered in our Legal partner Kingston Reid's latest Insight.

The labour hire arrangement is a simple one. One organisation (the labour hire provider) employs workers and provides a service to another organisation (the labour hire user) by assigning those workers to perform work for that labour hire user. The labour hire user pays the labour hire business a fee for providing labour hire workers to work for them. Labour hire workers are employed by the labour hire provider; they are not employees of the labour hire user.

Labour hire arrangements are used in countless industries to provide organisations with specialised labour, often on a temporary basis, allowing them to streamline their processes by outsourcing recruitment and focus on the core aspects of their business. It can also have a beneficial impact on productivity, efficiency and the bottom line.

But this arrangement has been criticised by unions and employee advocacy groups who say it leads to labour hire workers being paid unfairly low wages to cover work that could be done by salaried employees of the labour hire user.

This criticism is one of the areas of workplace and industrial reform the new federal Labor Government says they intend to address through the principle of ‘same job, same pay’.

If this mantra is translated into law, it’s vital that all organisations who use labour hire arrangements, whether they be labour hire providers or labour hire users, understand the potential change and what it may mean for the way they do business.

The current position

Labour hire workers are covered by any relevant award and the National Employment Standards regardless of the employment arrangements in place at the labour hire user. A labour hire provider may have also have its own enterprise agreement that will apply to labour hire workers if it covers the work they perform.

Labour hire workers are not covered by an enterprise agreement made between a labour hire user and its own employees unless the labour hire provider itself is a party to the agreement. Whilst there are occasions (most commonly in manufacturing or heavy industry environments) where the terms of an enterprise agreement between a labour hire user and its own employees, may require the user to ensure that any labour hire provider it engages pays at least the pay and conditions reflected in the users enterprise agreement, these are arrangements set by the labour hire user. They are not enshrined in legislation and where they are not present, a labour hire worker can work side by side with an employee of the labour hire user on different terms and conditions, including different pay.

Labor’s policy position

Labor’s pre-election ‘Secure Australian Jobs’ policy included the principle that if you work the same job, you should get the same pay. Labor has committed to ensuring that workers employed through labour hire providers receive no less than workers employed directly by the labour hire users.

This will undoubtedly be achieved through introducing legislation that makes ‘same job, same pay’ a minimum entitlement, such as including it as a new National Employment Standard.

Labor has a majority in the House of Representatives, meaning it will only need the support of the Greens and one other Senator for such legislation to pass. Given the Greens had a similar pre-election policy stating that “Workers should be paid and treated equally for the same kind of work”, they are likely to support Labor’s amendments making the change almost inevitable. The only stumbling block may be if the Greens and/or an independent or minor party Senator demand more than Labor is willing to give, resulting in a stalemate.

Two weeks ago, Tony Burke said following the summit and more consultation, further consideration will be given to the implementation of the policy.

What would this change mean?

This change will have a significant impact on the way labour hire providers and most labour hire users conduct business.

In practice, it will mean that the wage rates of a labour hire user will be applied to the labour hire workers, where they are higher than they would ordinarily receive from the labour hire provider, and presumably only if there is like-for-like work being done where a clear comparison can be made.

The policy slogan however leaves many questions unanswered:

1. What does ‘same job, same pay’ mean for other entitlements beyond headline pay rates (such as overtime, penalty rates and allowances)? Will these need to be equal? If it is all monetary elements, this will remove one of the key incentives for labour hire users engaging labour hire workers – a more flexible labour model and differentiated cost base.
2. What does ‘same job, same pay’ mean for non-monetary terms and conditions such as working hours, rostering, and flexibility? When the Fair Work Commission applies the Better Off Overall Test when assessing enterprise agreements, they recognise that wage rates are only part of the equation and should not be considered in a vacuum, absent consideration of other terms and conditions. It is therefore an interesting and potentially dangerous approach to look at monetary elements in isolation from other terms and conditions.
3. What does ‘same job’ mean? Not all labour hire arrangements involve labour hire and labour user workers doing the same job side-by-side. Many labour hire arrangements are used by labour hire users to outsource entire functions, so that the labour hire user has none of its own employees performing those jobs. In this case, applying the ‘same job, same pay’ principle has no application.

A wholesale push of the policy may result in this becoming more prevalent which would make the policy self-defeating.

What should the impacted stakeholders be thinking:

For labour hire users:

• It may impact future enterprise agreement negotiations given the agreed wage rate (and potentially other monetary entitlements) may apply not only to an organisation’s employees, but to those they engage via labour hire arrangements.
• It may impact the business case as to whether to outsource certain functions or engage labour hire workers to supplement or replace your workforce.
• It may impact existing labour hire agreements.

For labour hire providers:

• It may change the way labour hire workers are employed, given their rate of pay will differ based on the wage rates of the labour hire user they are providing services to.
• It may impact on existing labour hire agreements.
• It may lead to a reduction or growth in the use of labour hire arrangements.

There is more to consider as the Government continues to develop its position on this important legislative issue. The upcoming Employment Summit, which the Government has indicated will bring together Unions, Employer groups and other stakeholders will be an important opportunity for these issues to be further discussed and detail debated.

We will continue to provide Insights as this issue develops. Please contact us if you have any questions.

 

Rachel Bevan Senior Associate +61 2 9169 8410 rachel.bevan@kingstonreid.com

Michael Mead Partner +61 2 9169 8428 michael.mead@kingstonreid.com

Safe Work Australia recently updated the model WHS laws based on recommendations from the 2018 Review of the model WHS laws.

The updates include the model WHS Act and explanatory memorandum as well as the model WHS regulations and explanatory statement.

The amendments do not automatically apply in practice, as they must first be enacted and codified into law by states and territories before they could come into effect.

Safe Work Australia made amendments to:

• the model WHS Regulations to deal with psychosocial risks  (recommendation 2)
• work group provisions (recommendation 7b)
• health and safety representative training (recommendation 10)
• remove the 24-hour notice period for entry permit holders (recommendation 15)
• align the process for issuing service of notices to provide clarity and consistency (recommendation 16)
• enable inspectors to require the production of documents and answers to questions within 30 days of any inspector’s entry to a workplace (recommendation 17)
• clarify that a WHS regulator’s power to obtain information relevant to investigations of potential breaches of the model WHS laws has extra-territorial application (recommendation 18)
• clarify the circumstances in which WHS regulators can share information between jurisdictions (recommendation 19)
• include gross negligence as a fault element in the Category 1 offence (recommendation 23a)
• improve regulator accountability for investigation progress (recommendation 24)
• prohibit insurance for WHS penalties (recommendation 26)
• improve record-keeping and operator training for amusement devices and passenger ropeways (recommendation 28)
• compliance with standards not mandatory unless specified (recommendation 31b)

For more information please read the implementation of the WHS ministers’ agreed response to the review of the model WHS laws.

Original article from the Australian Institute of Health & Safety

Coming Soon - a new Formwork Safety program - A pathway for workers to receive micro credential learning on formwork specific WHS issues. 

In addition to addressing the current qualification issues and access to government funding for apprenticeship programs, the FIA over the past year has sort to address the safety issue of workers on site.

With high incident levels on site and other industry pressures there is still a need, and demand, for the right level of training and expertise to minimise the level of risk and improve safety on site.

Industry feedback requested the FIA create industry wide and recognised minimum levels of safety to get workers safely on site. Feedback also stated a need to re engage workers in learning and prepare them for future learning/training.

In late 2021, the FIA, as part of their strategy to provide a new education and training pathway and an industry lead solution to the issues in the industry, sort funding from SafeWork NSW to prevent or minimise harms by improving workplace health and safety, and reducing serious injuries and fatalities in NSW workplaces. The proposed solution was the introduction of a “Safe Formworker Pilot Program” – A pathway for workers to receive micro credential learning on formwork specific WHS issues.

This program will provide specific formwork skills and positive awareness of the industry risks, by providing practical learning outcomes to benefit workers. The Activity will focus on the individual formworker to allow that person to increase their safety knowledge and skills, allow them to become more employable, more connected to the industry and their peers and increase motivation and enthusiasm in the industry.

In an industry with very poor learning skills, desire to learn, or even requirement to learn, the easy to access micro credential learning program will be accessible to workers at toolbox talks, pre starts or other times in the shed via mobile learning. With video and image-based learning, along with gamification, it is hoped to re engage workers in learning, tackle the language barriers and prepare workers for further learning.

Look out for the launch coming soon in July.

As a result of the advocacy work the FIA has conducted over the past two years, our members and the industry are able to access not only the funding to subsidise apprentice wages, but also access and save a lot $$ more when employing apprentices.

Why and How – read on …

FIA Advocacy

Last year the Government subsumed the Formwork Cert III qualification into the Carpentry Cert III qualification and with it went access to funding for formwork companies when hiring apprentices.

It also demolished any education and skills pathway for our industry and access to even more funding to assist the sector in need of Australian wide standardised and consistent training, including recognition of prior learning and skills.

With government infrastructure projects requiring training and learning targets from all contractors, including subbies, and new legislation landing, access to training and funding for our members was a key priority to help the industry in these tough times. Any dollars we can save our members is a step in the right direction.

Workplace Manslaughter is now a jailable offence! 

More Inspectors. More inspections. 

TBT - Advocating for improved safety in the Formwork Industry 

 

After campaigning at both Federal and State level the FIA has agreed with the Australian Skills Quality Authority (ASQA) agreed to extend the transition period of CPC31511 - Certificate III in Formwork/Falsework until 31 December 2023. This means that our members can continue to employ apprentices and access funding available. It means our industry still has a qualification that RTOs can deliver, and it means our industry still has access to specific formwork training.

Read more here 

 

Access to funding

The Federal Government has pledged $2.4 billion in funding for an overhauled Australian Apprenticeships Incentive Scheme.

Off the back of the $365m extension to the Boosting Apprenticeship Commencements (BAC) wage subsidy comes the $2.4bn Australian Apprenticeships Incentive System (AAIS), starting July 1st. The AAIS will focus on priority occupations and will target occupations in current shortage. This new investment system will see benefits to both employers and apprentices via cash incentives.

Read more on this and how Apprenticeship Support can assist you here. 

 

 

Certificate III in Formwork/Falsework reinstated until 31 December 2023

Following extensive campaigning at both Federal and State level by the FIA we are pleased to share that recently the Australian Skills Quality Authority (ASQA) agreed to extend the transition period of CPC31511 - Certificate III in Formwork/Falsework until 31 December 2023.

The decision was made on 24 May 2022 with support from the following: -

This allows the Formwork industry to continue to employ apprentices and access relevant funding to assist with wage bills.

It also enables the industry to access training and demonstrate education and learning targets now required for most government projects to secure projects and work.

Furthermore, it enables the FIA to continue to campaign for improved safety within the industry, access to Australian wide standardised and consistent formwork safety training to enable workers to return safely home to their families at the end of the working day.

Workplace Manslaughter is now a jailable offence! 

More Inspectors. More inspections. 

TBT - Advocating for improved safety in the Formwork Industry 

You Can Now Access the $2.4 Billion Funding Pledge to Subsidise Apprentice Wages.

Coming Soon - a new Formwork Safety program

This extension is granted to all ASQA registered training organisations (RTOs) delivering the CPC31511 - Certificate III in Formwork/Falsework until 31 December 2023.

The Training Accreditation Council and Victorian Registration and Qualifications Authority will consider extending the transition period for the same training product for TAC or VRQA registered RTOs, where ASQA has approved an extension to transition of training products, to provide consistency across the sector. 

It was demonstrated to ASQA that learners would be genuinely disadvantaged if they were required to transition to the replacement qualification as the significance of changes would not provide the expected learning outcomes for existing learners.

The decision extends the transition period for ASQA registered RTOs to continue training assessment and issue Australian Qualifications Framework (AQF) certification.

CPC31511 - Certificate III in Formwork/Falsework will remain on relevant ASQA registered RTOs scope of registration until the end of the extended transition period, unless withdrawn from scope prior.

Keep your employees safe, or face the consequences.

Workplace manslaughter is now a jailable offence.

As an employer, if a workplace death is caused by criminal negligence you could face up to 25 years in jail, and fines of up to $16.5million.

There is no room for complacency, or negligence, when it comes to health and safety. Employers should always think about the risk to employees and others, and what steps can be taken to mitigate those risks.

Learn more about your obligations and find practical ways to reduce health and safety risks in your workplace.

Victoria's new workplace manslaughter offences

Understanding workplace manslaughter webinar

In advance of the new legislation coming into effect on July 1, WorkSafe held an educational webinar about workplace manslaughter and what it means for Victorians. A panel of WorkSafe experts discussed who the legislation applies to and what employers and workers need to do in order to comply.

If you missed out on the day, you can catch-up by watching the video.