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Perspective

Will the Omnibus Bill affect you?

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill (Omnibus Bill) was introduced by Hon Christian Porter MP on 9 December 2020. The Omnibus Bill was intended to assist Australian businesses and employees to recover in a post-COVID19 world. The Federal Government emphasised that the proposed reforms to the Fair Work Act 2009 (Cth) were intended to promote economic growth, productivity and jobs.

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The Omnibus Bill was referred to the Education and Employment Legislation Committee for a Senate Inquiry with a report due on 12 March 2021.

Since its introduction, there has been fierce debate concerning the content of the proposed reforms with many Unions and the Labor Party opposing many reforms.

So will the Omnibus Bill even affect you?

If the answer is “yes” to any of the below, it most likely will.

If you employ casuals, it will affect you.

What has changed? Details of the change Is it likely to pass?
Casual employee definition A person is a ‘casual’ if:

  • an offer of employment was made on the basis of no firm advance commitment to continuing and indefinite work;
  • the employee accepts the offer; and
  • becomes employed.

Factors for no firm advance commitment to continuing and indefinite work include:

  • whether both parties have the freedom to offer and reject work shifts;
  • whether the employee works as required;
  • whether it is described as casual employment; and
  • whether a casual loading is paid.

Noting regular pattern of hours does not equate to a firm commitment.

This is very contentious at the moment given the existing High Court cases involving Rossato and Workpac.

The definition is very different from the definition of casuals under the Awards and in the common law.

Both the Unions and the Labor Party have taken issue with this definition for casual employment with fears this will increase insecure employment in the workforce. There is little crossbench support at the moment.

Casual conversion Replicating the Modern Awards, a casual conversion clause will be inserted, requiring employers to make offers to convert casuals to permanent employment after 12 months of employment (provided they have regularly worked for at least 6 months).

All employers will be required to do so unless there are reasonable grounds not to make an offer, such as:

  • the employee’s position will cease in the next 12 months;
  • hours of work will reduce;
  • there will be changes to days, times for work to be performed that cannot be accommodated to employee’s availability; or
  • making an offer would not comply with the recruitment or selection process required by the law of Commonwealth, State or Territory.

Likewise, employees can make requests for casual conversion.

Yes, this is very similar to existing provisions under Awards. The conversion clause was an idea pressed by ACTU so should meet Labor Party support.
Casual information statements Similar to Fair Work Information Statements, the Fair Work Ombudsman will publish a Casual Information Statement outlining casual rights which must be provided to all casuals at the start of their employment. Unlikely to be any objection to this point

If you employ part-time employees, it will affect you [1].

What has changed? Details of the change Is it likely to pass?
Simplified Additional Hours Agreements Now possible to make agreements to increase hours for part-time employees (with their agreement) provided:

  • the employee normally works at least 16 hours a week or average of 16 hours
  • extra hours must be for a period of at least 3 continuous hours

Similar to agreements under existing Awards, this provides employers and employees with more flexibility to work increased hours if they want. The extra hours are treated as ordinary hours and do not attract overtime rates (unless outside span of hours or over maximum part-time employees can work as stated by Award).

Agreements can be terminated with 7 days notice by either party.

Making these Agreements becomes a workplace right, opening the possibility of general protections claims.

This will be one of the hotly debated topics as the Unions are adamant that employees should not be working extra hours without getting additional overtime payment.

Labor is not clear on whether they will support these changes but unlikely

 [1] Only under these Modern Awards – Business Equipment Award 2020, Commercial Sales Award 2020, Fast Food Industry Award 2010, General Retail Industry Award 2020, Hospitality Industry (General) Award 2020, Meat Industry Award 2020, Nursery Award 2020, Pharmacy Industry Award 2020, Restaurant Industry Award 2020, Registered and Licensed Clubs Award 2010, Seafood Processing Award 2020, Vehicle Repair, Services and Retail Award 2020.

If you want increased flexibility in your work directions, it will affect you.

What has changed? Details of the change Is it likely to pass?
Flexible work directions Reflecting the JobKeeper Directions, these amendments allow employees to give employees directions to do duties or work at another location outside of their normal arrangement provided it is safe and reasonably within the scope of employer’s business operations.

Unlike the other amendments, this one is not due to last forever. These directions will expire two years from date amendment is introduced.

These directions also have to comply with current minimum pay, consultation and reasonableness requirements under JobKeeper in order to be valid Directions.

This is contentious as many Unions believe there has already been enough support under JobKeeper. This is still likely to be passed as it applies only for a limited time but Labor’s concerns may mean the sunset time of two years is reduced.

If you have an EBA, intend to renew or terminate an EBA, it will affect you.

What has changed? Details of the change Is it likely to pass?
Extension of Notice of Representation Rights The amendment to extend the notice of representation rights from 14 days to 28 days provides employees with a fair and reasonable opportunity to be represented by a bargaining representative. It also gives employers more time to comply with their requirement to give notice and in effect reduces the risk of agreements being challenged on technical grounds at the approval stage. Likely to pass as it will reduce the challenges faced with ensuring all employees have access to the EBA and other material during the access period, although it may delay the bargaining process.
Pre-approval requirements

 

Amendments to ensure employers comply with giving employees a fair and reasonable opportunity to approve or not approve the proposed EBA, by ensuring:

  • employees are given access to the EBA and relevant material during the access period;
  • employees are notified of the voting details at the start of the access period; and
  • employees are aware of the terms and effect of the EBA and consider their needs and circumstances.
Unlikely to be any objection to this point.
Eligibility to vote Amendment to clarify that only permanent employees and casuals who worked during the access period are entitled to vote. This is likely to pass as it has been considered in relevant case law from the Full Court of the Federal Court and the FWC.
The “better off overall” test (BOOT) Expansion of relevant matters for consideration of BOOT. The FWC must consider the views and circumstances of interested parties, the impact of COVID-19, employee support for the proposed EBA, and whether it is not contrary to the public interest. Likely to pass as the Government have agreed to remove FWC’s ability to approve EBAs which did not pass the BOOT
NES interaction terms Amendments to include an NES interaction term in all EBAs that will explain the connection between the NES and the EBA. The Model term will come out in the Regulations. Unlikely to be disputed too much and will pass.
Franchise employers and their employees The proposed amendment to enable an eligible franchisee employer to apply to the FWC to be covered by an existing single EBA that covers a group of employers (2 or more) under the same franchise. Unlikely to be disputed too much and will pass.
Termination of an EBA To make an application to terminate an EBA, at least 3 months must have elapsed since the nominal expiry date. This aims at promoting good-faith collective bargaining during the period following the nominal expiry. Unlikely to be any objections
How the FWC may inform itself These amendments limit those who can provide submissions in relation to an application to approve or vary an EBA. Unless there are exceptional circumstances the FWC may only inform itself through publicly available information, submissions made by a volunteer body or prescribed parties. This is likely to pass as it will rectify the unnecessary delays caused by those who are not a party to the bargaining of the agreement, for example, Unions who are not bargaining representatives to an EBA will not be able to provide submissions (unless in exceptional circumstances).
Time limits The FWC must determine an application to approve or vary an agreement within 21 working days after the application has been made, if it is unable to do so it must provide in writing to each employer covered and each employee organisation. Likely to be passed as the current median time to determine all agreement applications was 33 days, which will reduce the lengthy delays and the requirement of the FWC to provide notice if it cannot meet the deadline provides certainty and confidence in the system.
Greenfields EBA A Greenfields agreement that relates to the construction of a major project can have a nominal expiry date of up to 8 years. This is likely to pass as the current 4-year limit means that the agreement can expire mid-construction and in effect instils a high level of unnecessary uncertainty and exposure.

If you intend to transfer your business, it will affect you.

What has changed? Details of the change Is it likely to pass?
Change to the definition of transfer of business No transfer of business if:

  • the new employer is an associated entity of an old employer when the employee is engaged with the new employer; or
  • if before termination employee sought to become employed by the new employer.
There may be some debate as it will mean more employees will lose continuity of service.

If you are on a bridging EBA or Workplace Determination, it will affect you.

What has changed? Details of the change Is it likely to pass?
Bridging EBAs and Workplace Determinations From 1 July 2022, automatic sunset of all EBAs and workplace determinations that were made during the bridging period. Will likely pass to remove these old agreements.

If you are worried about underpayments, it will affect you.

What has changed? Details of the change Is it likely to pass?
A criminal offence for underpayments Increased penalties for engaging in dishonest and systematic underpayments of employees. For an individual the maximum penalty is up to four years imprisonment or up to $1.1 million, for corporations, four years imprisonment and a maximum penalty is up to $5.5 million. Likely to be passed as it will act as a greater deterrent and promotes rights for employees to receive their full entitlements.
Job advertisements with pay rates lower than minimum wage prohibition This will be a civil remedy breach, maximum of $13,320 for an individual and $66,600 for corporations. Unlikely to be any objection to this point.
Increase of civil penalties for ordinary remuneration related contraventions Where non-compliance does not constitute a criminal offence there will be a 50% increase in the penalty.

Fines which attach to infringement notices sham contracting and failing to comply with a compliance notice will increase by 50%.

Unlikely to be any objections.
Increase in small claims jurisdictional limit Increase from $20,000 to $50,000 – Courts will be required to consider whether to refer small claims to the FWC for conciliation and arbitration if parties’ consent. This is likely to pass as it will enable more applicants to have access to more cost and time effective solutions for their claims.
The time limit for prosecution ABCC or FWO can commence criminal proceedings within 7 years of conduct occurring. This is likely to pass.

If the FWC wins new powers and jurisdiction in small claims, it will affect you.

What has changed? Details of the change Is it likely to pass?
Varying Modern Awards and EBAs The Fair Work Commission now has the power to vary Awards and EBAs to resolve uncertainty or difficulty around:

  • simplified additional hours agreements;
  • flexible work directions; and
  • the definition of a casual.
Will likely pass to ensure that all legal instruments are uniform.
Small claims applications in Courts The small claims threshold for courts has increased from $20,000 to $50,000.

The requirement for courts to consider transferring the matter to conciliation by the Fair Work Commission first, in order to free up court resources.

The Fair Work Commission can also arbitrate the matter.

Uncontentious and will likely pass.
Dismissal of applications Except for dismissal disputes, the Fair Work Commission can dismiss applications if they are found to:

  • be vexatious;
  • be frivolous;
  • have no reasonable prospects of success; or
  • are an abuse of process.

Additionally, they can order that the employee cannot make further applications of the same kind without permission.

Unlikely to be disputed too much and will pass.
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