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Piece of the pie: Federal Budget measures affecting workplace relations

The October 2022 Federal Budget, announced last week, will have implications for workplace relations. Following is an outline of these measures.

Reinforcing Respect@Work measures

The Federal Government has made provision in the Budget to reinforce some of the measures that it has recently announced to support the Respect@Work recommendations. For instance, funding has been allocated to:

  • Working Women’s Centres in all states and territories so they can provide advice and information to workers on gender-based workplace issues, including sexual harassment ($32 million over 4 years and $8 million per year ongoing);
  • support education and compliance activities associated with introducing the positive duty on employers to take reasonable and proportional measures to eliminate sex discrimination and sexual harassment ($5.8 million over 4 years and $1.8 million per year ongoing); and
  • establish a one-stop shop for workplace sexual harassment information, including about victims’ rights, support service referrals and employer responsibilities ($2.1 million over 4 years and $0.4 million per year ongoing).

Regulating the building and construction industry

The abolition of the Australian Building and Construction Commission is expected to save the Government $61.1 million over 4 years and achieve an annual ongoing savings of $20.4 million.

Additional resourcing will be provided to the Fair Work Ombudsman to comprehensively regulate the Fair Work Act 2009 (Cth) (FW Act) in the building and construction industry.

Supporting small business for paid family and domestic violence leave

$3.4 million is allocated over 4 years to support small businesses with the implementation of 10 days of paid family and domestic violence leave.

Providing additional funding for the Fair Work Commission (FWC)

The FWC will receive additional funding to:

  • establish the Pay Equity and Care and Community Sector expert panels and a research unit ($20.2 million over 4 years and $5.3 million per year ongoing);
  • establish a new dispute resolution framework (modelled on the framework that applies to general protections dismissal disputes) to deal with sexual harassment disputes ($15.1 million over 4 years and $3.8 million per year ongoing); and
  • change the FWC small claims process ($7.9 million over 4 years and $1.9 million per year ongoing).

Funding is also made available to support an update of enterprise bargaining for small businesses ($7.9 million over 4 years) and develop Carer Friendly Workplace Framework to assist employers develop practices to support employees with caring responsibilities ($2 million over 3 years).

The Commonwealth penalty unit will increase from $222 to $275 on 1 January 2023, taking the maximum fine for a body corporate employer to $82,500 or $825,000 for serious contraventions.

Seeing the demise of zombie agreements

One of the measures identified in the Budget documents is the automatic sun-setting of agreement-related instruments made prior to the commencement of the FW Act on 1 January 2010 and during the bridging period (1 July to 31 December 2009). These so-called ‘zombie agreements’ are officially entitled agreement-based transitional instruments, collective agreements, preserved collective state agreements, pre-reform certified agreements, old IR agreements, or Division 2B state employment agreements.

When the Secure Jobs, Better Pay Act commences, the parties to these instruments will have 12 months’ grace before the instrument ceases operation. Unless the parties to the instrument make a replacement enterprise agreement, the employees concerned will revert to the applicable modern award.

Upon application and where it is satisfied that it is reasonable in the circumstances, the FWC may extend the 12-month period of the automatic sun setting of zombie agreements to ensure it does not harshly impact anyone. Either an employer, employee or union may apply to the FWC for an extension. The FWC may make an unlimited number of extensions but for no longer than 4 years at a time.

The FWC will also have to consider whether bargaining for a new enterprise agreement is occurring and whether the affected employees and employers would be better off overall, in determining whether certain conditions apply and whether extending the default period is otherwise appropriate in the circumstances.

Employers will be obliged to notify relevant employees of the automatic sun setting and face a penalty if they fail to do so. This notice must be given within 6 months from the time that Secure Jobs, Better Pay Act commences.

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