31 Oct HR LAW NEWSLETTER – OCTOBER 2023

Welcome to the October 2023 HR Law Newsletter.  Over the course of this year, several pieces of legislation have been passed, some of which will only have its effects on employers over the coming months.  This month we remind employers of some upcoming legislation to be aware of, and discuss a case, in which the Fair Work Commission rejected the approval of an enterprise agreement after the employer failed to get the pre-approval requirements correct.   

REMINDER: ZOMBIE AGREEMENTS

A reminder that pre-2010 agreements that continue to operate (referred to as “zombie agreements”) will automatically terminate (or “sunset”) on 7 December 2023, unless an application has been made to the Fair Work Commission (“FWC”) to extend the default period for the agreement.

When a pre-2010 agreement terminates, it ceases to operate.  The minimum pay and conditions for employees covered by that agreement will then be set by a modern award, or an enterprise agreement that covers the employees (if there is an enterprise agreement in place).

Do you know which modern award your employees will be covered by? Would you like a modern award assessment conducted or assistance with drafting a new enterprise agreement?  Please contact the team at HR Law to discuss your business’ needs.

REMINDER: CHRISTMAS SHUTDOWNS

Are you shutting down over the Christmas/New Year period? Are you expecting employees to take leave over this period? 
On 1 May 2023, the FWC varied 78 modern awards, as part of the FWC’s four-yearly review of modern awards process, by replacing existing shutdown clauses in the modern awards with a new model term.
Now is the time for employers to review the applicable modern award provisions of these model terms in preparation for any shutdown over the Christmas/New Year period.  Undertaking this review now will assist employers to:

• be aware of and provide all staff the minimum required notice period of any intended shut down under the applicable modern award; and

• effectively approach situations where employees do not have adequate leave accrued for the entire shutdown period.

If you would like more information regarding employer obligations around annual shutdowns, contact HR Law today. 

To access the modern awards, click here.

REMINDER: RESPECT@WORK COMPLIANCE POWERS

A reminder that from 13 December 2023, the Australian Human Rights Commission’s new compliance powers under the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (“Respect@Work Act”) come into effect.  These powers will enable the Commission to enforce the positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible, in the workplace, and investigate systemic unlawful discrimination.

With the enforcement powers under the Respect@Work Act on the horizon, now is the time for employers to begin preparing and implementing measures to prevent sexual harassment, sexual discrimination, and victimisation from occurring in the workplace.  Conducting a workplace audit is essential to identify potential vulnerabilities and areas for improvement regarding how a business handles sex discrimination, sexual harassment, and victimisation in the workplace.  

THIS MONTH’S CASE BRIEF

In this month’s case brief, we highlight the importance of getting the pre-approval steps on an enterprise agreement correct.  As zombie agreements will cease to operate from 7 December 2023, we are seeing an increase in bargaining for enterprise agreements.  As such, this case serves as a timely reminder that implementing these steps are vital to getting the process right.

In the case of Application by Geocon Constructors (ACT) Pty Ltd T/A Geocon [2023] FWC 2676, the FWC rejected the approval of an enterprise agreement, after changes were made to the agreement in the “access period” which meant the enterprise agreement could not have been “genuinely agreed to” by employees.

When approving an enterprise agreement where the notification time was on or after 6 June 2023, the FWC must take into account its Statement of Principles on Genuine Agreement.  The Statement of Principles sets out matters that the FWC must take into account in determining whether it is satisfied that an enterprise agreement “has been genuinely agreed to by the employees covered by the agreement”.  The Statement of Principles includes whether an employer can show that employees were given a reasonable opportunity to consider the proposed enterprise agreement.  A requirement to establish this is that employers provided a copy of the proposed enterprise agreement to employees at least seven full calendar days before voting starts or such other reasonable time period agreed with bargaining representatives for employees.

In this case, Geocon Constructors (“Geocon”) provided a copy of the proposed enterprise agreement to employees on 24 July 2023.  After issuing the proposed enterprise agreement, Geocon then made further changes to the enterprise agreement (“Agreement”).  Employees were not provided with an updated copy of the Agreement.  The CFMMEU argued that the FWC could not be satisfied that the Agreement was genuinely agreed to due to the deficiencies in the way Geocon provided access to the Agreement and explained the Agreement to its employees.  In response, Geocon argued that it had sufficiently explained the Agreement, as it had already explained the earlier version of the enterprise agreement and employees were aware of the negotiated changes.

Deputy President Slevin stated this was “beside the point” as Geocon’s failure to provide an updated document meant the employees “were not given the opportunity to consider the wording of the final agreement to allow them to vote in an informed manner” and “there was no explanation given of the amended proposal”.  The Deputy President found these failures to be “significant” and dismissed the application.

This case serves as a reminder to employers to ensure it complies with the strict requirements under the Fair Work Act 2009 (Cth), as well as the FWC’s Statement of Principles on Genuine Agreement (which apply to enterprise agreements that have a notification time on or after 6 June 2023) when submitting an enterprise agreement for approval.

If you require any assistance with drafting or bargaining for an enterprise agreement or are considering implementing an enterprise agreement at your workplace, contact HR Law today.  

To read this case, click here.

UPCOMING WEBINAR

HR Law’s sister company, HR Business Assist is hosting a complimentary Webinar event on Wednesday, 1 November 2023 commencing at 9:00am.

In this Webinar, HR Business Assist will discuss:

• tips and tricks for a successful staff Christmas party;

• considerations for staff Christmas parties from an HR perspective; and

• employer requirements for annual shutdown periods.

To register for this informative Webinar, please click here.

WHAT YOU MAY HAVE MISSED

Federally Funded Paid Parental Leave

The Albanese Federal Labour Government has introduced legislation to increase federally-funded paid parental leave to 26 weeks.  The Paid Parental Leave Amendment (More Support for Working Families) Bill boosts the entitlement to 26 weeks in stages until July 2026.  Under the Bill, the current entitlement of 20 weeks (with 100 flexible PPL days) will increase to:  

• 22 weeks (raising flexible days to 110) in July next year;

• 24 weeks (120 flexible days) in July 2025; and

• 26 weeks (130 flexible days) in July 2026.  

The Explanatory Memorandum states the financial impact of these measures from 2022-23 to 2026-27 is $1.2 billion.  HR Law will keep you updated.  

To read the Bill, click here.

Timetable for review of Modern Awards

The FWC has now confirmed its timetable for its Modern Awards Review 2023-24.

During the Review, the Commission will consider:

• the new object of the Fair Work Act and modern awards objective regarding job security and the need to improve access to secure work across the economy;

• the impact of workplace relations settings on work and care; and

• award coverage and minimum standards for the arts and culture sector.

To view the Timetable, click here.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.