Secure Jobs, Better Pay Review – draft report released

This week, Emeritus Professor Mark Bray and Professor Alison Preston released a draft report of the independent statutory review of the legislative amendments introduced to the Fair Work Act 2009 (Cth) (FW Act) by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJPB Act). Their 19 recommendations are open for comment until 16 February 2025

The Panel considers that "the Secure Jobs, Better Pay reforms are, on the whole, achieving the Australian Government’s intent, operating appropriately and effectively and with minimal unintended consequences". The Panel identified areas for improvement in respect of three key areas: collective bargaining and agreements, job security and gender equality, and institutional integration.

Secure Jobs, Better Pay Act

The SJBP Act commenced on 7 December 2022, implementing landmark industrial reforms, and amending workplace relations laws on collective bargaining and agreements, job security, gender equality, compliance and enforcement, workplace conditions and protections and workplace relations institutions. The amendments were rolled out in four stages in the 12 months following the Act's commencement, and the final amendment took effect on 6 December 2023.

The statutory review was announced on 2 October 2024 by the Minister for Employment and Workplace Relations in accordance with legislative requirements.

Collective bargaining and agreements

Initiating bargaining

The SJBP Act introduced a new mechanism enabling unions to initiate bargaining for a replacement single-enterprise agreement. If an employer receives a valid bargaining request, the employer is required to issue a notice of employee representational rights (NERR) to all employees to be covered by the proposed single-enterprise agreement.

The Panel recommended the Fair Work Commission (FWC) publish guidance to assist employers understand their obligations after receiving a valid bargaining request, noting that such guidance should include a template written request which specifies (among other matters) the requirement for employers to issue a NERR within 14 days of receiving the request.

Industrial action: Mandatory conciliation conference

The SJBP Act introduced a new mandatory step requiring that where the FWC makes a protected action ballot order (PABO), it must also make an order directing the bargaining representatives for the agreement to attend a mandatory conciliation conference.

The Panel noted that the new requirement for conference has garnered mixed reactions from stakeholders. The Panel recommended that the requirement for the parties to attend a mandatory conciliation conference be amended to provide the FWC with the discretion not to conduct a conference if there is agreement between bargaining representatives.

Enterprise agreement approval: Statement of Principles on Genuine Agreement

The SJPB Act wound back some of the genuine agreement provisions in the FW Act and replaced it with a requirement for the FWC to take into account a newly created Statement of Principles on Genuine Agreement in determining whether an agreement has been genuinely agreed.

The Panel recommended that the FW Act be amended to ensure the Statement is "a complete statement of the matters the FWC must consider in relation to whether a proposed enterprise agreement has been genuinely agreed".

Job security and gender equality

Equal remuneration

The Panel found that overall, the work value amendments made as a result of the SJBP Act were having their intended effect, and further recommended:

• the FWC continue its program of work to advance gender equality, particularly by addressing the low pay in other female dominated industries, and to set out broader principles for identifying and addressing work value and gender undervaluation;
• the FWC continue to support parties and facilitate proceedings to address gender undervaluation, including through its gender pay equity unit undertaking research and gathering evidence to support future work value proceedings;
• the Government take steps to advise the FWC and stakeholders of its position on funding for the outcomes of FWC reviews to address gender undervaluation at the earliest opportunities; and
• the Government actively monitor bargaining outcomes in sectors that receive significant increases to modern award rates of pay due to gender undervaluation.

Fixed-term contracts

The SJBP Act introduced limitations on the use of fixed-term contracts. The Panel noted that while it is in most cases more appropriate to employ workers in secure, ongoing roles, many fixed-term contracts last more than two years or two renewals and can be an appropriate form of employment. The Panel also found that some form of limitation on, or disincentive against, the use of fixed-term contracts is appropriate.

With a view towards identifying potential recommendations for its final report, the Panel has proposed that the Government reconsider the approach to limiting the use of fixed-term contracts, and is seeking stakeholder views on the following options:

• amending the existing framework to make the limitation and current exceptions more readily applicable in practice; or
• introducing a principles-based framework into the FW Act with specific limitations and exemptions primarily determined through the FWC.

Institutional integration

Establishment of the National Construction Industry Forum

The SJBP Act established the National Construction Industry Forum (NCIF) from 1 July 2023. The NCIF is a tripartite body that provides advice to the Government in relation to work in the building and construction industry with the aim of driving long-term change in the construction sector and improving industry culture.

The Panel observed that the amendments which established the NCIF are working as intended, and recommended that the NCIF continue its work developing and implementing a building and construction industry blueprint to achieve its goal of cultural change in the industry. The Panel also recommended that the NCIF be used as a model tripartite forum to advise the Government on other industries.