Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 – Initiating Bargaining

*Note the information in this Alert takes account of the passage of the Bill on 2 December 2022 and subsequent Royal Assent.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) removes the requirement for employee bargaining representatives (such as Unions) to obtain majority support to initiate bargaining if (in summary):

• the proposed agreement would replace an earlier single-enterprise agreement that has not gone beyond 5 years of the passing of its nominal expiry date; and
• a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement; and
• the proposed new agreement will cover the same, or substantially the same, group of employees.

In these circumstances the employee bargaining representatives can simply commence the bargaining process by writing to the employer.  The requirement to obtain a majority support determination (being majority support by employees to commence bargaining) would continue to apply where the above conditions are not met.

The changes mean that where agreements have expired and are within the 5 year ‘window’, it is easier to compel bargaining on expiry of an agreement.

These changes are in addition to the new requirements concerning single interest employer authorisations which impose an obligation to bargain where employers are subject to a single interest employer authorisation. Our Alert ‘single interest employer authorisations’ explains this further.

It is recommended that employers consider their bargaining strategies in light of the change, and seek advice in the context of any bargaining proposals.<

Key elements of the Bill include:

• The Abolition of the Australian Building and Construction Commission
• Equal Remuneration
• Prohibiting Pay Secrecy
• Prohibiting Sexual Harassment in connection with work
• Fixed Term Contracts
• Flexible Work
• Termination of Enterprise Agreements after Nominal Expiry Date

• Sunsetting of “Zombie Agreements”
• Initiating Bargaining (Multi-Employer Bargaining)
• Better off Overall Test
• Bargaining Disputes
• Industrial Action
• Single Interest Employer Authorisation
• Cooperative Workplaces
• Enhancing the Small Claims Processes