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Labor introduces Industrial Relations Bill

The Labor Government has introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill (Bill) into Parliament and is seeking to have the legislation passed before 1 December 2022. Broadly the Bill seeks to address enterprise bargaining, sunsetting ‘zombie agreements’, flexible work arrangements, fixed term contracts, pay secrecy, and equal remuneration.

The Bill also aims to introduce reforms to the existing enterprise bargaining structure. The ‘Better off overall (BOOT) test’ will apply as a global assessment rather than a line by line examination. Particularly concerning to business groups is new forms of ‘multi-employer bargaining’ aimed at supporting low-paid workers in typically feminised industries (such as aged care, disability care and early childhood education) to bargain, as well as in other industries.

To close the gender pay gap, the Bill seeks to prohibit pay secrecy clauses in employment contracts, to enable employees to talk about their pay and terms that are reasonably necessary to determine remuneration outcomes.

The Bill will seek to create enforceable rights for flexible work, the Fair Work Commission (FWC) being given arbitration powers.

More detailed updates of the Bill and what it means for businesses will be coming soon.

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022


10 days paid family and domestic violence leave

As of 1 February 2023 for most businesses, and from 1 August 2023 for small business employers, all full-time, part-time, and casual employees will be entitled to 10 days of paid family and domestic violence leave (FDV Leave) per year under the National Employment Standards (NES). This replaces the existing entitlement to 5 days of unpaid family and domestic violence leave per year.

Employees will accrue a full 10 days of FDV leave from the time that they become entitled. This entitlement will then reset on the employee’s anniversary each year. FDV Leave will be paid at an employee’s full rate of pay (as opposed to their base rate of pay).

The definition of family and domestic violence has also been expanded to cover actions by former intimate partners and unrelated household members.

Employers will need to update their permanent and casual employment contracts, as well as internal processes and procesures, to provide for the paid entitlement, and remove any inconsistent provisions, prior to the start dates.

Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022


Privacy Act reform in light of recent cyber attacks

News of the recent cyber-attacks/data breaches are a timely reminder of the reputational and financial risks associated with compromises to the security of personal information. There is renewed focus on the Australian Government’s review and reforms of the Privacy Act 1988 (Cth) (Privacy Act) which were due to be released by the end of this year. Reforms will primarily focus on consumer personal data rights, but there is also likely to be a shift in the way employers are able to collect, use and disclose their employees’ personal information.

Currently employers have an exemption from the requirements of the Privacy Act with respect to employee records, specifically around keeping personal information secure, and obligations to allow access to, and correction of, personal information. Three options are being considered to address this concern. These including removing the employee record exemption in its entirety, modifying the exemption to include better protection but retaining employer flexibility, or retaining the exemption and using external legislation to enhance protections.

Employers should watch this space and review their internal data collection, storage and usage processes.


FWC reinstates transport worker as dismissal harsh

A Sydney Trains employee has been reinstated after it was found he had been unfairly dismissed from his employment following an initial conviction (that was later overturned) of assaulting and sexually touching a year 8 student.

An external investigator engaged by Sydney Trains found the employee had breached their code of conduct for hugging and kissing a year 8 student on the cheek/neck. The employee was dismissed after the NSW Local Court also found him guilty of a related criminal charge. The employee then successfully appealed the criminal conviction including on the basis that the CCTV footage did not show that he had kissed the student. In his unfair dismissal, the FWC found the employee’s interactions with the student (including hugging her) was a valid reason for dismissal, but was harsh in the circumstances. Including due to his length of service, exemplary record, and history of commendable dealings with the student. This included contacting the student’s father, escorting her to meet him, arranging a guard to look after her, and encouraging her to make a police report after being stalked and harassed by someone else on the platform on another occasion.

The FWC said that although Sydney Trains had a duty to prevent the behaviour occurring again, they could have taken action other than dismissal. The worker was reinstated and awarded lost remuneration.

Merhej Elali v Sydney Trains [2022] FWC 2757 (14 October 2022)

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