15 November 2022
Last week in Parliament there was much debate about the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. While I fully support the need to get real wages moving, the legislation has been rushed through by the Government – and has some clear pros and cons.
There are a number of very positive provisions in the Government’s proposed amendments, which reflect concerns raised at the Jobs and Skills Summit and make good progress in correcting inequities in the system that emerged from poor drafting of the Fair Work Act 2009 in respect to enterprise bargaining agreements (EBAs). These improvements include:
- Reforming the Better Off Overall Test (BOOT) as the test has undermined numerous EBAs
- Preventing sexual harassment in the workplace
- Increasing pay transparency to allow for greater visibility of pay scales across business operations and better gender pay equality
I believe there was a strong argument for the Government to split the Bill in two. This would have allowed for substantive progress to be made on the areas above, where there is solid agreement by all parties, from business to unions and would allow some immediate progress on wage growth. The balance of the draft legislation relating to multi-employer bargaining, which was only drafted following the Jobs and Skills Summit, needs substantially more consultation and consideration of unintended impacts across different sectors and industries, in particular the impact on small businesses. The Government introduced the legislation on 27 October 2022. After only 13 days to consider it, receive briefings and seek feedback from the community, the Government forced the Bill to a vote.
I remain concerned that the Government has not taken the time to properly consider the drafting and impacts of the multi-employer bargaining provisions as currently drafted. In particular, the intent to bind businesses as small as having 15 employees. I am concerned that this may lead to negative outcomes for small businesses and employees hoping for prompt wage growth as there will most likely be complex and lengthy negotiations with multiple businesses, legal challenges and protected industrial action. This will blow out wage increase timelines. I moved a number of amendments at consideration in detail stage relating to the following concerns:
- The definition of small business is too small – it currently applies to businesses with 15 or more employees (including part-time staff). This threshold is too low. I would like to see it increased to 50 full time equivalent staff.
- Common interest should be more clearly defined - At present, it's defined loosely as sharing a geographical location or being regulated by a common regulatory regime. The test should retain the need to consider the extent to which the relevant employers operate collaboratively rather than competitively and should avoid grouping large enterprises together with small businesses. It should take into account economic circumstances as well as the extent to which the employers operate collaboratively rather than competitively.
- The argument that this will get real wages moving is disingenuous. Multi-employer bargaining will take years. Updating awards for feminised industries such as childcare, that need immediate wage support, could be more promptly dealt with by raising awards as the government has just done for the aged care sector.
- Small businesses do not have the resources to deal with this complex legislation – It's particularly concerning when it comes to multi-employer bargaining provisions and the ability for employee representatives to join businesses who weren't even involved at the negotiating table of the initial enterprise agreement but who will then be dragged into that at the conclusion of the agreement. That absolutely should be amended.
- The rushed nature of the amendments means there has been limited ability to properly understand legal ramifications and likely consequences which may lead to unintended consequences. There hasn’t been the rigour which should go into this type of legislation, saying ‘that’s not our intention’ is not legal protection, and if matters reach legal proceedings, the lack of upfront consultation may ultimately undo the good work this Bill seeks to achieve.
There are a number of strong improvements proposed in this Bill. I fully support the commitment to get real wages moving. There is no denying we have seen a rapid increase in the cost of living, and wages need to respond so that Australians are not left behind. However, it’s misleading to claim that the Bill in its current form will do this, when there will be months of negotiation and complex processes.
At consideration in detail stage, the Government moved some 150 amendments to its own legislation to address issues raised during the limited consultation period. This is quite unusual and shows the legislation was not ready and not properly thought through.
On balance, my concerns about these provisions, the lack of consultation by Government and limited time to consider the implication of the provisions did not allow me to support it. Please see here my process of considering legislation.
The Bill is currently being reviewed by a Senate inquiry due to report on 17 November 2022, followed by a debate and vote in the Senate. It is highly likely to be amended and the final version will return to the House of Representatives where I will consider it again.
View my speeches about the Bill and proposed amendments here:
- 8 Nov: Zali Steggall urges Government to consider separating Fair Work Amendments - Zali Steggall
- 9 Nov: Zali Steggall raises concerns about rushed Fair Work amendments - Zali Steggall
- 10 Nov: Zali Steggall moves amendments to Fair Work Legislation - Zali Steggall
View the additional amendments I moved:
I look forward to receiving feedback from the community about this Bill.
Connect with me at: [email protected].
For media requests call Tiffany Elvy on 0407 790 892
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